Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Commission has not proven the Claimant lost his employment due to a work stoppage attributable to a labour dispute.

Overview

[2] The Appellant (Claimant) was a probationary employee who was required to pay union dues to work on site but was not a member of the union which could only occur forty-five calendar days after the date of hire. Prior to that date the collective agreement did not apply to the Claimant and within those 45 days the company could decide if it would keep the Claimant employed. The employer was engaged in negotiations with the union and on March 26, 2018, the day the union was taking its strike vote, the employer terminated the Claimant’s employment at the end of his shift citing a shortage of work / end of contract season on the Record of Employment (ROE). The union completed its strike vote and went on strike effective 12:30 a.m. on March 27, 2018, the day after the Claimant’s employment ended. The Respondent, the Canada Employment Insurance Commission (Commission), disentitled the Claimant from Employment Insurance benefits (EI benefits) because it determined he had lost his employment as a result of a work stoppage attributable to a labour dispute. The Claimant requested a reconsideration of the Commission’s decision and the Commission upheld its original decision. The Claimant appeals to the Social Security Tribunal (Tribunal).

Preliminary matter

[3] The employer, a party added by the Tribunal, did not appear at the teleconference hearing at the scheduled time, though it was duly notified. The Tribunal is satisfied the employer received the Notice of Hearing sent on October 15, 2018, as Canada Post’s delivery receipt shows the NOH was delivered to the employer’s address and signed for on October 10, 2018. As of date of writing the employer has not contacted the Social Security Tribunal to explain their absence.

[4] Based on the above, the Tribunal proceeded with the hearing in the absence of the added party, as allowed by subsection 12(1) of the Social Security Tribunal Regulations.

Issues

Issue 1: Was there a loss of employment?

Issue 2: If so, was the Claimant’s loss of employment because of a work stoppage?

Issue 3: If so, was the work stoppage attributable to a labour dispute at the premises where the Claimant was employed?

Issue 4: If so, was the Claimant participating in, financing or directly interested in the labour dispute?

Analysis

[5] The Employment Insurance Act (Act) states that a claimant who loses or is unable to resume employment because of a work stoppage attributable to a labour dispute at the location where he is employed is not entitled to receive benefits.  The disentitlement stops when the work stoppage terminates or when the claimant becomes regularly employed in insurable employment elsewhere.  A claimant who is not participating in, financing or directly interested in the labour dispute that caused the work stoppage is not subject to a disentitlement (section 36, Act).

[6] The term “labour dispute” is defined in the Act as a dispute between employers and employees that is connected with the employment or non-employment, or the terms or conditions of employment, of any persons (section 2, Act).

[7] The onus is on the Commission to prove that there has been a loss of employment, the loss of employment resulted from a work stoppage, the work stoppage was attributable to a labour dispute and the labour dispute occurred at the premises at which the claimant was employed (Touzel v Canada (Attorney General), A-1063-92).

[8] The existence of a causal connection between a labour dispute and a work stoppage is a question of law (Canada (AG) v Simoneau, A-611-96).

[9] It is important to emphasise that, once disqualified from receiving benefits by subsection 36(1), claimants have the burden of proving that they are re-entitled under subsection 36(4) (Black v Canada (Employment Insurance Commission), 2002 FCA 255).

Issue 1: Was there a loss of employment?

[10] Yes, the Tribunal finds there was a loss of employment.

[11] The Claimant testified that he had been previously employed by the employer on a project that ended on February 28, 2018. He provided the tribunal with a copy of ROE XXXXXX418 (ROE 418) that showed his first day worked as March 10, 2016 and his last day for which paid as February 28, 2018. The reason for issuing ROE 418 was “A” - which is the code for “shortage of work/ end of contract or season.” The employer then issued ROE XXXXXX655 (ROE 655) to reflect the Claimant’s employment finishing on March 26, 2018. However, for an unknown reason, the employer indicated that ROE 655 was issued to replace or as an amendment to ROE 418. The Tribunal notes that on ROE 655 the reason for issuing remained as “A” which is the code for “shortage of work/ end of contract or season” but the Claimant’s first day worked was now March 5, 2018, his last day for which paid was March 26, 2018, and the hours of insurable employment were significantly reduced as were the total insurable earnings. The Claimant’s Representative, affirmed to provide testimony, submitted that ROE 655 contained erroneous information. ROE 655 had the effect of “wiping out” all the hours the Claimant had worked in his previous period of employment that ended on February 28, 2018. She testified that she and the Claimant contacted the employer to have the error corrected. As a result, the employer issued ROE XXXXXX594 (ROE 594) which indicated the reason for issue as “K” which is the code for “other” and stated in the comments section “Please disregard ROE Serial #:XXXXXX655. That ROE never should have been an amended ROE but a new ROE. ROE# XXXXXX418 has been verified and is correct.”

[12] The Tribunal finds the Commission was not correct to change the reason for issuing the ROE 594 as the change is not reflective of the facts that existed at the time the Claimant lost his employment. The employer issued ROE 594 to resolve an error it created when it issued ROE 655 as an amendment to ROE 418. The changes in ROE 655 from ROE 418 were the dates of employment and the amount of insurable hours. In ROE 655 there was no change to the reason for issuing ROE 418. The employer’s representative indicated to a Service Canada Agent that the Claimant while not on strike could not work either and expressed uncertainty as which reason to use for issuing the ROE. The Service Canada Agent indicated “as per BEA this was changed to B-Strike or Lockout. “BEA” is not defined in the docket and the Commission has not cited the legislative authority it relied upon to change to the reason for issuing on ROE 594. The Claimant’s employment stopped on March 26, 2018, when he was told by his superintendent that he was laid off. The strike did not occur until 12:30 a.m. on the following day, March 27, 2018. As a result, the Tribunal finds that the Commission was not correct to alter the reason for issuing ROE 594 from “A- shortage of work / end of contract” to “B - strike or lockout” and does not accept “B – Strike or Lockout” as the reason for issuing the ROE. The Tribunal finds as fact the reason for issuing the ROE was “A – shortage of work / end of contract.”

[13] The Claimant testified that on his last day of employment, March 26, 2018, he was told by his superintendent that he was laid off. He finished work at the end of his shift at 5:00 p.m. The employer issued an ROE showing the Claimant’s last day of work as March 26, 2018, indicating the reason for issuing as “A” which is the code for “shortage of work / end of contract or season” which the Tribunal has found as fact. In a report to the Commission the employer included the Claimant in a list of part-time, casual, probationary employees and in reference to the Claimant indicated “Probationary” under the column heading “Reason for Termination.” Based on the Claimant’s testimony and the documentary evidence in the docket, the Tribunal finds the Commission has established the Claimant lost his employment on March 26, 2018.

Issue 2: Was the loss of employment because of a work stoppage attributable to a labour dispute?

[14] No, the Tribunal finds the Claimant’s loss of employment did not result from a work stoppage attributable to a labour dispute.

[15] The question of whether employees laid off in anticipation of a strike are disentitled from EI benefits by section 36 of the Act has been considered in Canadian Umpire Benefits (CUB) decisions and the courts. The Tribunal, although not bound by CUB decisions, takes guidance from CUB 9830A, where the Umpire stated “We must remember, however, that section 44 [now 36] makes it clear that the loss of employment must be the result of a stoppage of work due to a labour dispute and not simply the result of a labour dispute. … It would matter little if it were established that the claimant was dismissed in anticipation of a work stoppage which was to begin the following day as the result of a lockout. … A work stoppage is essential to the loss of employment provided for under Section 44 [now 36].” The Tribunal notes that the analysis contained in CUB 9830A was accepted by the Federal Court of Appeal in White v Canada (Attorney General), A-1036-92. In White the Court determined that claimants who had been laid off just before a strike were not disentitled from EI benefits under the provisions of section 36. In that case the Court found the “applicants did not have continuing employment following their layoff. They lost their employment by layoff. They were at the complete mercy of their employer as to whether there would be a recall or not.”

[16] A similar situation was addressed by the Federal Court of Appeal Gionest v Canada (Unemployment Insurance Commission), A-878-81, where an employer did not re-open its seasonal fish processing plant at the usual time because negotiations for a new collective agreement had not concluded and it did not want to begin operations only to be faced with a strike or lockout. The Commission determined that the claimants were not entitled to benefits during this extension of their layoff because they had lost their employment by reason of a work stoppage attributable to a labour dispute. The Court determined that the claimants were entitled to EI benefits because they were already unemployed at the time the employer decided to delay opening: “One cannot lose what one does not have. A person cannot lose his employment if he does not first have employment which he subsequently loses.”   

[17] The Claimant testified that he was not a member of the union and did not participate in the vote to take strike action. He was required to pay dues to be able to work on the site but could not become a member of the union until 45 days after he was hired. During the 45 day period the company could decide whether to keep him employed and only after 45 days would the Collective Agreement would apply to him. He was hired March 5, 2018, and the 45 days had not elapsed at the time he was laid off. He was working while the strike vote was being taken and when they voted to go strike he “was already out the gate.” The documentation provided by the employer and the union to the Commission show that negotiations commenced on January 8, 2018, and a conciliator was appointed on January 16, 2018. The union indicated in its report to the Commission the strike vote was taken on March 26, 2018. The employer indicated in its report to the Commission that it was given strike notice on March 27, 2018. The Union indicated in its report to the Commission the strike began at 12:30 a.m. on March 27, 2018. The Claimant testified that he was told prior to the end of his shift on March 26, 2018, that he was laid off and he stopped working at the end of his shift at 5:00 p.m. on March 26, 2018. He testified that when he left the site he was told he could not come back to work. He did not know if he would be recalled. There is no date of recall on the ROE. The employer issued the ROE showing the Claimant’s last day of work as March 26, 2018.

[18] The Tribunal finds that the Claimant’s loss of employment was not a result of a work stoppage attributable to a labour dispute. The Claimant was laid off prior to the work stoppage. He lost his employment at the end of his shift at 5:00 p.m. on March 26, 2018. The Claimant’s ROE states his employment ended on March 26, 2018. The Union’s report submitted to the Commission states the strike commenced at 12:30 a.m. on the following day, March 27, 2018. The employer confirmed in its report to the Commission that the strike notice was received on March 27, 2018. Based on the forgoing evidence, the Tribunal finds that the work stoppage attributable to the labour dispute began after the Claimant lost his employment. As a result, the Tribunal finds that the Claimant was unemployed prior to the work stoppage attributable to a labour dispute occurring. One cannot lose what one does not have (Gionest, supra). Accordingly, the Tribunal finds that the Claimant did not lose his employment due to a work stoppage attributable to a labour dispute. Thus, the Tribunal finds the Commission has not proven the Claimant lost his employment because of a work stoppage attributable to a labour dispute.

[19] Having determined the Commission has failed to prove the Claimant lost his employment because of a work stoppage attributable to a labour dispute, it is not necessary to decide whether the work stoppage was attributable to a labour dispute at the premises where the Claimant was employed or whether the Claimant had a direct interest in the labour dispute. As such, the Tribunal will conclude its analysis.

[20] As the Claimant did not lose his employment due to a work stoppage attributable to a labour dispute, the Tribunal finds the Claimant is not disentitled to benefits under the provisions of section 36 of the Act.

Conclusion

[21] The appeal is allowed.