Employment Insurance (EI)

Reasons and decision

Persons in attendance

[1] No parties attended the hearing conducted by teleconference on October 14, 2015.

[2] On August 4, 2015, the claimant requested an adjournment of the hearing because of an unplanned trip outside of Canada. The Tribunal granted the new hearing and a new notice of hearing was sent on August 4, 2015. The hearing was adjourned to October 14, 2015.

[3] Subsection 12 (2) of the Social Security Tribunal Regulations states that the Tribunal will proceed in a party’s absence if it previously granted an adjournment or postponement at the party’s request and if the Tribunal is satisfied that the party received notice of the hearing. The Tribunal verified the Priority Post delivery notice received on August 7, 2015.The Canada Post site confirmed that the claimant personally signed the Priority Post delivery notice. The Tribunal is therefore satisfied that the claimant had received notice of the hearing since he signed the mail delivery notice on August 7, 2015, prior to the date of the hearing on October 14, 2015. The Tribunal may therefore proceed in the claimant’s absence.

Introduction

[4] The Appellant filed a claim for employment insurance benefits commencing December 4, 2011. On September 10, 2014, the Canada Employment Insurance Commission (the “Commission”) informed the claimant that it could not pay him Employment Insurance benefits for the period from February 6, 2012 to February 10, 2012 since periods during which he had not worked had been included in his work schedule. The Commission stated that the disentitlement also applied to the periods from March 19, 2012 to March 23, 2012, and from April 30, 2012 to May 4, 2012 since periods in which the claimant had not worked had been included in his work schedule. An overpayment of $1404.00 was established.

[5] On October 30, 2014, the Commission informed the claimant that the decision issued on September 10, 2014 concerning the weeks of unemployment had been upheld. The Commission added that [translation] “in fact, under your labour agreement, you are entitled to a lay-up period as compensation for working a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment. Your file shows that you worked for the employer, ALSTOM POWER & TRANSPORT CANADA, from January 9, 2012 to May 20, 2012, and that you received (3) periods of leave, each lasting 10 days, from February 3 to February 13, 2012, from March 16 to March 26, 2012 and from April 27, 2012 to May 7, 2012. You are therefore not considered to have been unemployed in the weeks of February 6 to 10, 2012, March 19 to 23, 2012 and April 30, 2012 to May 4, 2012, pursuant to section 11(4) of the Employment Insurance Act (the “Act”).

[6] The claimant appealed this decision before the Social Security Tribunal of Canada (the “Tribunal”) on November 17, 2014.

[7] The hearing of this appeal was by Teleconference for the following reasons:

1. The complexity of the issue or issues under appeal.
2. The fact that credibility is not anticipated to be a prevailing issue.
3. The Appellant will be the only party attending the hearing.
4. The information in the file, including the need for clarification.
5. This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

Issue

[8] Is the claimant entitled to receive Employment Insurance benefits under section 11 of the Employment Insurance Act (the “Act”) in relation to his unemployment status?

The law

[9] Section 12 of the Social Security Tribunal Regulations states:

(1) If a party fails to appear at a hearing, the Tribunal may proceed in the party’s absence if the Tribunal is satisfied that the party received notice of the hearing.

(2) The Tribunal must proceed in a party’s absence if the Tribunal previously granted an adjournment or postponement at the request of the party and the Tribunal is satisfied that the party received notice of the hearing.

[10] Section 9 of the Employment Insurance Act (the “Act”) states:

When an insured person who qualifies under section 7 or 7.1 makes an initial claim for benefits, a benefit period shall be established and, once it is established, benefits are payable to the person in accordance with this Part for each week of unemployment that falls in the benefit period.

[11] Section 11 of the Act states:

1. (1) A week of unemployment for a claimant is a week in which the claimant does not work a full working week.
2. (2) A week during which a claimant’s contract of service continues and in respect of which the claimant receives or will receive their usual remuneration for a full working week is not a week of unemployment, even though the claimant may be excused from performing their normal duties or does not have any duties to perform at that time.
3. (3) A week or part of a week during a period of leave from employment is not a week of unemployment if the employee (a) takes the period of leave under an agreement with their employer; (b) continues to be an employee of the employer during the period; and  (c) receives remuneration that was set aside during a period of work, regardless of when it is paid.
4. (4) An insured person is deemed to have worked a full working week during each week that falls wholly or partly in a period of leave if (a) in each week the insured person regularly works a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment; and (b) the person is entitled to the period of leave under an employment agreement to compensate for the extra time worked.

Evidence

[12] Letter from Human Resources Skills Development Canada dated May 6, 2013 questioning the claimant about periods in which he claimed Employment Insurance benefits while he was still working for his employer. The Commission asked the claimant whether the periods from February 5, 2012 to February 11, 2012, from March 18, 2012 to March 24, 2012 and from April 29, 2012 to May 5, 2012, were periods of authorized leave, and the claimant said that authorization was unnecessary since the leave was authorized under the agreement. The claimant explained that he indicated his availability for work after consulting a Service Canada Centre officer in X and telling him that he was not receiving pay, was available to work at the CCQ and available to his business officer, and told him he was entitled to compensation. He said that this kind of thing happened very often, and that he might be called for “shut-downs” or for longer-term work.

[13] On October 17, 2013, the Commission’s investigator contacted Alstom, the employer, and asked for the exact dates of La Sarcelle site closures during the holiday periods in December 2010, 2011 and 2012. The dates given by the employer were December 17, 2010 to January 3, 2011, December 23, 2011 to January 8, 2012 and December 21, 2012 to January 7, 2013. 

[14] On November 15, 2013, the Commission’s investigator contacted Alstom, the employer, which explained that [translation] “employees who work at Northern sites like La Sarcelle, Romaine and Eastmain are all governed by the collective agreement and subject to the 28/10 schedule, meaning at least 28 days of work followed by 10 days of leave. The employer said that employees usually ask for leave after 28 days, but if they keep working and don’t get sick or mentally affected by the remoteness, they can stay. A normal week of work at the sites varies from one location to another. At Romaine, for example, it’s 40 hours and then workers are paid double time, and at James Bay it’s 50 hours and then double time. All employees put in 60 hours a week and work six days, from Monday to Saturday, or Sunday too if necessary or in an emergency. These conditions are the same for all types of workers: crane operators, mechanics, plumbers, electricians, laborers, carpenters and so on…” (GD3-14).

[15] Collective agreement of the Québec Road Builders and Heavy Construction Association (“QRBHCA”) (GD3-15 à GD3-18).

[16] Staff – La Sarcelle indicating that the claimant was hired on August 7, 2011 and had periodic leave from February 3, 2012 to February 13, 2012 (GD3-19), from March 16, 2012 to March 26, 2012 (GD3-20), and from April 27, 2012 to May 7, 2012 (GD3-21).

[17] On October 30, 2014, the Commission contacted the claimant and informed him that an investigation had shown that for his employer, Alstom Power & Transport Canada, employees working on the La Sarcelle site in the North, regardless of the nature of their job, were governed by the collective agreement and subject to the 28/10 work schedule, i.e., at least 28 days of work for a maximum of 10 days of leave. Given that this work/leave schedule is part of the collective agreement, he was not entitled to benefits during his periods of leave pursuant to subsection 11 (4) of the Employment Insurance Act. The claimant reported that he worked 35 days and received 10 days of leave (GD3-27).

Arguments

[18] The Appellant argued that:

1. The claimant said he was available for work when he was on leave from the work site.
2. He said that a Service Canada agent had confirmed that he was entitled to receive Employment Insurance benefits.

[19] The Respondent submitted that:

1. Subsection 11(4) of the Act provides that an insured person who works a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment and who, under an employment agreement is entitled to a period of leave is deemed to have worked a full working week during each week that falls wholly or partly in a period of leave. The first condition concerns the work itself and the second, an entitlement under an employment agreement. When both conditions are met, the claimant is deemed to be employed during the full week in which such leave occurs.
2. In the Commission’s opinion, the claimant was not unemployed during his weeks off (lay-up) following his period of work, and the employer/employee relationship was not broken.
3. Herein, the claimant worked at least 28 days and received 10 days of leave, such leave being provided under his collective agreement. He cannot apply for Employment Insurance benefits for the term of his employment agreement since he did not lose job, is on leave authorized under a current collective agreement, and the employer/employee agreement remains unbroken; once he has worked his 28 days, the claimant knows, that after each 10 days of leave, he will be back at work the following Monday. His employer has confirmed this information.

Analysis

[20] Section 9 of the Act states that when an insured person who qualifies under section 7 or 7.1 makes an initial claim for benefits, a benefit period must be established and, once it is established, benefits are payable to the person in accordance with this Part for each week of unemployment that falls in the benefit period.

[21] Subsection 11 (1) of the Act states that a week of unemployment for a claimant is a week in which the claimant does not work a full working week.

[22] Subsection 11 (4) of the Act states that an insured person is deemed to have worked a full working week during each week that falls wholly or partly in a period of leave if in each week the insured person regularly works a greater number of hours, days or shifts than are normally worked in a week by persons employed in full time employment; and the person is entitled to the period of leave under an employment agreement to compensate for the extra time worked.

[23] The employer states that employees working on sites in the North, like La Sarcelle, Romaine and Eastmain, are all governed by the collective agreement and subject to the 28/10 schedule, i.e., at least 28 days of work followed by 10 days of leave. It specified that under normal circumstances, most employee request leave after 28 day. However, if they wish to continue working and are not ill or affected by the remoteness, they may remain. He said that a regular week of work at the sites varies according to the site situation, i.e., at Romaine, it amounts to 40 hours, after which employees are paid double time, and at the James Bay site, it amounts to 50 hours, after which double time is paid.

[24] The Tribunal notes that the collective agreement states [translation] “with each 35 day period […], the employee is entitled to 10 days of leave without pay, including the time required to travel from the site to the worker’s home, and from the worker’s home to the site. For contracts with submissions filed after September 26, 2010, the two (2) periods of 18 and 35 days are reduced respectively to 14 and 28 days” (GD3-17).

[25] The Employer also confirmed that the claimant was on recurring periods of leave from February 3, 2012 to February 13, 2012 (GD3-19), from March 16, 2012 to March 26, 2012 (GD3-20), and from April 27, 2012 to May 7, 2012 (GD3-21).

[26] The Court is therefore satisfied that the evidence on file shows that the Appellant worked “a greater number of hours, days or shifts than are normally worked in a week by persons employed in full time employment,” as provided in subsection 11(4) of the Act.

[27] In Duguay, the Court stated, “It seems clear to us that under the employment agreement, the weeks off in question were weeks of leave within the meaning of s. 10(4). They were therefore not weeks of unemployment,” (Canada (Attorney General) v. Duguay, #A-75-95).

[28] The Court has also said: “In order to make a determination under subsection 11(4) of the Act, there must be evidence to show that the claimant worked more than the usual number of hours that are normally worked in a week by persons employed in full time employment. This question is essentially one of fact and the Umpire should not intervene unless the Board made a reviewable error, namely that it ‘based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it’” (paragraph 115(2)(c) of the Act).” (Canada (Attorney General) v. Merrigan, 2004 FCA 253).

[29] On the basis of the evidence and arguments presented by the parties, the Tribunal is satisfied that the claimant’s regular work week consists of a greater number of hours than are normally worked in a week by a person employed in full-time employment. The Tribunal is therefore satisfied that the weeks in question in this appeal reflect weeks of leave provided under the claimant’s employment agreement. The weeks of leave provided in his employment agreement are considered weeks of employment pursuant to subsection 11 (4) of the Act. Accordingly, the claimant is not entitled to Employment Insurance benefits for these weeks.

Conclusion

[30] The Tribunal is satisfied that the claimant was not unemployed during his weeks of leave, such weeks being provided in his employment agreement, and the employer-employee relationship remaining intact. The claimant is not entitled to Employment Insurance benefits for the weeks from February 6 to 10, 2012, March 19 to 23, 2012 and April 30, 2012 to May 4, 2012 since he was not considered unemployed pursuant to subsection 11 (4) of the Act.

[31] The appeal is dismissed.