Employment Insurance (EI)

Decision

[1] The appeal is allowed. I find Claimant is not disentitled from receiving employment insurance (EI) benefits because her contract for teaching ended on June 30, 2019, and she has proven that she experienced a genuine termination of the employment relationship.

Overview

[2] The Claimant worked as a teacher for a private school. Her employment was governed by a contract that ran from August 28, 2018, to June 28, 2019, and did not include payments for the months of July and August. The Claimant stopped working on June 28, 2019, and made an application for EI benefits. The Commission decided that because the Claimant was a teacher she was disentitled from receiving regular EI benefits during the non-teaching period. The Claimant requested reconsideration. The Commission maintained its position because the Claimant did not meet the relief conditions to receive benefits during the non-teaching period due to linkages from one teaching contract to the next. The Claimant appeals the Commission’s decision to the Social Security Tribunal (Tribunal).

Preliminary matter

[3] At the hearing the Claimant withdrew her appeals of the Commission’s other two decisions: imposition of a disentitlement to EI benefits from August 27, 2019, to August 30, 2019, and June 29, 2020 to June 30, 2020, because the Claimant was not available to work elsewhere during those periods; and, imposition of a disentitlement to EI benefits from September 2, 2019, to June 26, 2020, because the Claimant was not unemployed during those periods.

[4] On November 8, 2019, after the hearing, I requested the Commission investigate an issue. During the hearing, the Claimant made reference to the Record of Employment (ROE) and submitted that it stated she had been laid off. As there was no ROE in the appeal file and the Claimant had mailed her only copy to the Commission, I asked the Commission to provide a copy of the ROE. The Commission provided the ROE and supplementary representations in response to my request on November 12, 2019. The Claimant was made aware during the hearing that I would making this request and if necessary, she would be provided with an opportunity to comment on the ROE if its contents were not in support of her statements. As the ROE did not indicate a reason for issuing, thereby not contradicting or supporting her statements, I did not provide the Claimant an opportunity to comment. I admitted the ROE into evidence because I consider it to be relevant to the issue and clarifies the parties understanding of whether they knew at the time the Claimant stopped working if she would be returning to work.

Issues

[5] Issue #1: Was the Claimant employed in teaching?

[6] Issue #2: If so, is the Claimant entitled to receive benefits during a non-teaching period?

Analysis

[7] A teacher is someone who is employed in the occupation of teaching in a pre-elementary, an elementary, or a secondary school, including a technical or vocational school.^{Footnote 1}

[8] Teachers are not entitled to receive regular EI benefits during non-teaching periods. A non-teaching period is an annual period that occurs at regular intervals during which no work is performed by a significant number of people employed in teaching.^{Footnote 2} The expression “non-teaching period” is not restricted to the summer holidays, but includes any breaks during the school year.^{Footnote 3}

[9] A claimant who was employed in teaching during their qualifying period is not entitled to receive benefits for any week of unemployment that falls in a non-teaching period unless the claimant’s contract of employment for teaching has terminated, the claimant’s employment in teaching was on a casual or substitute basis, or the claimant qualifies to receive benefits from an employment other than teaching.^{Footnote 4} A claimant need only satisfy one of these exemptions to establish an entitlement to EI benefits.

[10] Unless there is a break in the continuity of a teacher’s employment, the teacher will not be entitled to EI benefits for the non-teaching period. The purpose of the EI program is to pay benefits to those who are truly unemployed.  Teachers are not truly unemployed during school breaks, even if they are not being paid in the summer break, so they are not entitled to benefits.^{Footnote 5}

Issue #1: Was the Claimant employed in teaching?

[11] It is undisputed that the Claimant was employed in teaching. The Claimant testified that she was a teacher in a private school. Her contract with the school show she was employed as a teacher from August 28, 2018, to June 28, 2019. As such, I accept as fact that the Claimant was employed in teaching, and was a teacher within the meaning of the Employment Insurance Regulations.

Issue #2: Is the Claimant entitled to receive benefits during the non-teaching period?

[12] The Claimant is seeking EI benefits for the summer break. As neither party disputes that this is a non-teaching period, I accept that the summer break should be considered a non-teaching period.

[13] I find the Claimant experienced a break in her employment prior to the non-teaching period.

[14] I further find the Claimant’s situation meets an exception to disentitlement under the Employment Insurance Regulations,^{Footnote 6} because she has proven that, on a balance of probabilities, her contract of employment for teaching terminated. This means she is not disentitled from receiving EI benefits from July 1, 2019, to August 26, 2019.

[15] The Claimant testified that she worked for a private, non-unionized school. The Claimant’s employer submitted a copy of the Claimant’s contracts to the Commission for the 2018/2019 school year and the 2019/2020 school year. In each contract the Claimant is employed from late August to late June in the following year. The Claimant testified that when her employment ends at the end of June she does not know if she will be re-hired by the school for the following school year. She said “when the contract is done at the end of June, you are done.” She testified that the school hires its teachers based on the enrollment of students and its needs for teachers at various grade levels and in various subjects. The Claimant testified that in mid-August 2019 she received a call to come to a meeting with school officials. She met with the principal and other members of the school management on August 21, 2019. At that meeting she was offered a teaching position for the 2019/2020 school year and was advised that the employer wanted her to take on extracurricular activities involving organized sports for the students and fundraising. She was also given an opportunity to make an “appeal” for a higher salary. She said that she asked for a salary increase of $1,000 for the 2019/2020 school year because she was expected to engage in extracurricular sports activities and fundraising. The employer agreed to her request and her contract was drawn up and signed at that meeting.

[16] The Claimant testified that the same process has been in place for the past number of years for all teachers at the school. Teachers are paid monthly and finish work at the end of June. The teachers do not know if they will be rehired until mid to late August when the employer contacts them. At that time, if the employer chooses to rehire a teacher, the employer contacts the teacher, meets with them and lets the teacher know what grades and subjects are to be taught, how many hours a week they are required to teach, and any other duties that will be required. The teacher also has an opportunity to negotiate their salary at that meeting and make an “appeal” to the school management. If an agreement is reached the contract is prepared and signed at that meeting.

[17] The Claimant testified that during the 10 months she is employed she has access to group insurance coverage provided through her employer. She said that although she retains the insurance card after June 30th she is not entitled to any coverage under those plans. Instead, she uses her spouse’s medical plan for any expenses.

[18] The Claimant testified that she is not a member of a union, she does not accrue seniority, her length of service does not dictate her salary and she does not contribute to a pension plan.

[19] The Commission discussed the Claimant’s group insurance coverage with representatives of the employer. I note that conflicting answers were received on this issue. On August 8, 2019, the employer’s School Administrator told the Commission that the Claimant receives medical/dental benefits during the non-teaching period. On September 6, 2019, the School Administrator told the Commission that coverage for group insurance benefits terminates at the end of the school year and teachers cannot extend that coverage to the summer non-teaching period. The Service Canada Agent asked the School Administrator to “speculate why the Claimant declared on the Request for Reconsideration that she and her colleagues had group insurance benefits coverage during the summer non-teaching period.” The School Administrator replied the Claimant must be mistaken. I note that the Claimant’s request for reconsideration says “I would like for you to reconsider that I am still employed due to the fact that I receive medical benefits” and “My other co-workers are receiving their EI and from [school] and received medical benefits.” The employer’s principal is recorded as telling the Commission that group insurance continues over the summer months unless student enrollment is expected to be so low it would not be feasible for the employer to recall the teacher, the teacher tells the employer they will be “unable or unwilling to accept a recall from layoff” or the employer decided to terminate the employment relationship. The principal also told the Commission that the employer pays premiums for group insurance benefits coverage during the summer non-teaching period.

[20] The School Administrator also told the Commission that while teachers earn 5 paid sick leave days per contract those days do not carry forward from one school year to the next. In addition, the School Administrator told the Commission, the employer is not bound by any agreement to consider teachers’ experience and/or seniority when making employment-related decisions or determining salary and the employer does not offer a pension plan (except for the Canada Pension Plan).

[21] The employer’s principal told the Commission that the Claimant is laid off from her employment as a teacher at the end of each school year. The principal said although the Claimant is employed on a recurring seasonal basis, she is not guaranteed to return to work after the summer non-teaching period has ended. The principal told the Commission that the employer cannot decide to recall until after the enrollment has been finalized. The Claimant does not have to reapply for a position each year. The Claimant received and accepted an offer of employment for teaching for the 2019/2020 school year on August 21, 2019.

[22] The Claimant submitted that for the last 8 years when she was laid off at the end of June she applied for and received EI benefits. The Claimant testified that approximately two weeks after she applied for EI benefits in June 2019 she called Service Canada because she had not received a cheque. The Service Canada Agent told the Claimant that she had indicated in her application that her teaching status was “permanent contract for an indefinite period.” The Claimant testified that this was a mistake on her part. She said she is not permanent; she is a contractual employee and she should have chosen the 10-month contract. The Claimant testified that when she told the Service Canada Agent she had made this mistake, the agent assured her that she could correct the error and that no one would call her about it. The Agent confirmed the Claimant’s bank account information. The Claimant submitted that she is the only teacher from her school that has not received EI benefits during the non-teaching period.   

[23] The Claimant testified that she looked for work during the non-teaching period. She was able to secure a job with a tutoring firm. The Claimant also said that she has worked for the regional public school board and is on their call-in / substitute list.

[24] To determine whether a teaching contract has terminated, I must consider all the relevant factors, including but not limited to: the length of the employment record, the duration of the non-teaching period, the customs and practices of the teaching field in issue, the receipt of compensation during the non-teaching period, the terms of the written employment contract, if any, the employer’s method of recalling the claimant, the record of employment form completed by the employer, other evidence of outward recognition by the employer, and the understanding between the claimant and the employer and the respective conduct of each.^{Footnote 7}

[25] The evidence is that the Claimant had a contract to teach at a private school from August 28, 2018, to June 28, 2019. She was paid monthly and not paid after June 30, 2019. At the end of the contract, which coincided with the end of the school year, both the employer and the Claimant did not know if she would be offered employment in the following school year. The ROE does not have a code for the reason for issuing. However, it does indicate that the Expected Date of Recall is Unknown. The school finalizes its teaching assignments and makes offers of employment with varying terms to teachers from mid to late August. Where the employer decides that it needs to fill a position, the employer contacts the teacher, a meeting is held where the teaching assignment, hours of work, any other additional duties and salary is discussed and agreed upon. This is, in my opinion, a negotiation of new employment relationship. The evidence concerning the conduct of the parties, that is the employer and the Claimant, towards each other is that the Claimant is free to search for work elsewhere. There is no obligation on the employer to rehire the Claimant and there is no obligation on the Claimant to return to work with her employer.

[26] The Commission relied upon the fact that the Claimant did not have to reapply for employment and the continuation of group insurance coverage during the non-teaching months as evidence there was no veritable break in the Claimant’s employment. I note the first mention in the appeal file of the Claimant’s group insurance coverage during the non-teaching period was from the employer’s School Administrator who said the Claimant had coverage and then later said she did not and also that the Claimant must have been mistaken when the Claimant said that she did have coverage over the non-teaching period. This was later contradicted by the principal who is recorded as stating the employer pays the medical premiums over the summer months. The Commission requested the School Administrator to obtain and submit documentation from the insurer attesting to whether the Claimant had group insurance benefits coverage during the summer non-teaching period. I note that although the School Administrator provided copies of the Claimant’s contracts there is no attestation from the insurer in the appeal file, if it was received, and there is no mention of the plan’s terms or conditions in the Commission’s submissions to the Tribunal. Further, the group insurance plan is not referenced in the contract between the Claimant and her employer. The Claimant’s statement concerning medical benefits was, according to the appeal file, first made in her request for reconsideration. She asked for the Commission to “reconsider that I am still employed due to the fact that I receive medical benefits.” There is no evidence the Commission asked the Claimant directly about having group insurance coverage during the non-teaching period despite being aware of the School Administrator’s statement that the Claimant was not covered. Under oath the Claimant testified that she did not have access to group insurance coverage over the summer months. I accept the Claimant’s testimony that she did not have group insurance coverage over the summer months because she appeared before me and gave direct evidence that she did not have coverage and where necessary she used her spouse’s benefit plans for any expenses. In any event, in my opinion, regardless of whether the coverage continued over the non-teaching period, that in and of itself, when the content and nature of the contract and the employer’s control of the hiring process is taken into account, is insufficient to establish an on-going employment relationship.

[27] Teachers who have their contracts renewed before their teaching contracts expire, or shortly thereafter, for the new school year are not unemployed and there is continuity of employment.^{Footnote 8} The evidence is that the Claimant’s employment ended on June 28, 2019, in accordance with the contract between her and her employer. There was no discussion prior to the end of the 2018/2019 school year whether any teacher, and in particular the Claimant, would be employed in the following school year. The employer and the Claimant both confirmed there is no obligation on the employer to offer employment to or to rehire the Claimant in the following school year. The employer chooses, once its enrollments are known to it, whether to contact the Claimant to commence negotiations for a new contract. There is no evidence that positions are advertised, thereby negating any opportunity for the Claimant to apply or reapply. In this case, the negotiations for a new employment relationship included the Claimant’s request for a salary increase based on the employer’s requirement the Claimant perform extracurricular duties related to student sports and fundraising. The negotiations took place on August 21, 2019, when an offer was made by the employer, the Claimant requested a salary increase, the employer agreed to that increase and the Claimant accepted the contract on those terms. As a result, I find that the negotiations for a new 10-month contract of employment were concluded on August 21, 2019. As a result, because I find the Claimant did not accept an offer of employment from her employer prior to August 21, 2019, I find the employment relationship was genuinely severed on June 28, 2019. While the Claimant did return to the employment, she did not know at the end of June 2019 that she would be returning and actively sought other work.

[28] Based on the above, I conclude that the Claimant was a teacher, but is entitled to be paid EI benefits in a non-teaching period because she meets an exception in section 33(2) of the Employment Insurance Regulations. I find the Claimant has proven her contract for teaching terminated. This means the Claimant is not disentitled from receiving EI benefits from July 1, 2019, until August 26, 2019.

Conclusion

[29] The appeal is allowed. I find the Claimant was employed as a teacher, but experienced a termination of her contract for teaching. Given this, I find the Claimant meets the exception under section 33(2)(a) of the Employment Insurance Regulations. The result is that she is not disentitled from receiving EI benefits under this claim.