CUB 76966

L.-P. LANDRY, Umpire

The Commission appeals from a decision of the Board of Referees allowing the claimant’s appeal from the Commission’s decision which allocated an amount of $12,000.00 received by the claimant upon the settlement of a grievance.

The claimant last day of work with the Government of British Columbia was October 23, 2009. She requested benefits under the Short Term Illness and Injury Plan of the employer and was denied benefits. The claimant filed a grievance and on February 8, 2010 minutes of settlement were signed whereby the claimant received a gross amount of $12,000.00

The evidence indicates that the employer requested that the claimant resign from her position in order to settle the matter. The claimant forwarded her letter of resignation on January 26, 2010. The evidence indicates that during the course of the negotiations, a first amount of $10,000.00 was offered. The claimant was requesting an amount of $14,000.00. In the end the parties agreed on the amount of $12,000.00.

The claimant submits that the essence of this settlement relates to the fact that through her resignation she did wave all her rights to reinstatement. She submits that the amount received does not constitute severance from her employment.

The employer representative submitted that the amount offered related to the rights of the claimant to receive three weeks pay for each year of service as severance payment. However the employer did not show how the amount was specifically determined.

The Board concluded that the moneys received by the claimant were paid in consideration of her relinquishing her rights to reinstatement. The Board’s conclusion on that question is expressed as follows:

‘’In weighing the evidence, the Board finds evidence from the claimant to carry more weight than evidence from the employer. While the employer stated the settlement was not for relinquishment of a right to reinstatement, evidence to indicate it was based on past service, or based on severance, is not provided (other than the employer’s general statement to that effect). The Board could not reconcile a calculation of $12,000 to fit with severance or any other reason (such as STIIP which was denied by the employer).

The claimant’s description of the events leading to the settlement value did make sense however. The offer and counter-offer scenario was described in sufficient detail to be credible and to be consistent with other evidence.

The Board finds as a fact that the settlement was not determined as a calculation based on past service.’’

The standard of review in this case is that of reasonableness, since the question raised is one of mixed fact and law (Meechan v. A.G. of Canada, A-140-03). It is also recognized that a payment made to a person in consideration of that person relinquishing her right to reinstatement does not constitute earnings arising out of employment. (A.G. of Canada v. Plasse, A-693-99).

Here the Board recognized that the claimant had the onus of proving that the monies received did not constitute earnings under the Employment Insurance Act. The Board concluded as a matter of fact that it should give more weight to the claimant’s evidence than to the evidence of the employer. The Board further noted that the employer had not been able to demonstrate any detail pertaining to the calculation of the alleged severance pay.

Considering the evidence it was open to the Board to conclude as it did that the monies received by the claimant were paid in consideration of her relinquishing her right to reinstatement. The decision meets the criteria of reasonableness.

For those reasons the appeal is dismissed

L.P. LANDRY
UMPIRE

Gatineau, Quebec
April 29, 2011