Employment Insurance (EI)

Decision

[1] I am dismissing the appeal.

[2] The Claimant worked a full working week during each of the weeks he received “lay day” pay. This means he is not considered unemployed from April 15, 2020, to May 8, 2020. As a result, he was not eligible for Employment Insurance (EI) benefits for that period.

Overview

[3] The Claimant worked for the Canadian Coast Guard under a contract that began on March 26, 2020, and ended on May 8, 2020. He worked 12 hours a day during the first three weeks of the contract. His employer paid him for six hours of these hours each time and “banked” the remaining hours so it could continue to pay him while he was on leave.

[4] The Commission decided that the Claimant was working full working weeks throughout his contract and was not, therefore, unemployed, even after he left the ship on April 15, 2020. The Commission disentitled him from receiving EI benefits from March 26, 2020, to May 8, 2020. It wants him to repay benefits he received for that period.

[5] The Claimant disagrees. He argues that he should receive benefits starting on April 15, 2020, because his employer had no more work for him. He says this makes him unemployed.

[6] He argues that the Commission’s reconsideration decision is unfair because he followed the instructions on the biweekly claim reports that say you have to report your earnings when you earn them, not when your employer pays you.

[7] He says the Commission misled him because there were no other reporting options on the biweekly claim forms for someone in his circumstances. There was no information on its website about “lay day” contracts. He says the Commission agent who helped him complete his reports said nothing about this other standard for reviewing claims.

Issue

[8] Was the Claimant unemployed from April 15, 2020, to May 8, 2020?

Analysis

[9] If you qualify for EI benefits, the Commission pays you benefits for each week of unemployment.^{Footnote 1} A week of unemployment is a week in which you do not work a full working week.^{Footnote 2} However, you are considered to have worked a full working week if the following two conditions apply to you.^{Footnote 3}

[10] The first condition is that you regularly work more hours, day or shifts than is usual in full-time employment.^{Footnote 4} Your employer pays you for half your hours and “banks” the rest. The second condition is that you are entitled to a period of leave to compensate you for the extra time you worked.^{Footnote 5} You do not perform any more work but your employer uses your banked hours to pay you as if you had worked a full working week. This type of week does not count as a week of unemployment.^{Footnote 6}

[11] The Claimant and the Commission agree on several facts. The Claimant was employed under a “lay day” contract with the Canadian Coast Guard. The contract ran from March 26, 2020, to May 8, 2020. He worked on the ship until the day he left, April 15, 2020.

[12] There is no employment contract in the evidence, but statements from both the Claimant and the employer show that during the first three weeks he regularly worked more hours than is usual in full-time employment (12 hours a day).^{Footnote 7} The employer banked six of these hours each shift to cover paid leave (“lay days”) for the remaining weeks of the contract.^{Footnote 8}

What does the Commission say?

[13] The Commission says the Claimant worked full working weeks throughout his contract, from March 26, 2020, until May 8, 2020. It disentitled him from receiving benefits for the entire period because it did not consider him as unemployed just because he left the ship on April 15, 2020. This is because his employer still paid him for “lay days” up to the end of his contract.

What does the Claimant say?

[14] The Claimant argues that he should receive benefits starting the day he left the ship because his employer had no more work for him. He says this makes him unemployed.

[15] The Claimant says his employer did not pay him for the second half of his contract until the end of May 2020. He argues that he should get benefits after he left the ship until his contract ended on May 8, 2020, because he did not work and had no earnings during that period.

[16] The Claimant says the Commission’s decision is unfair because it has no information on its website for seamen like him. He argues that he followed the instructions on his biweekly claim forms that he should report his pay when he earned it, not when he received it. He says the Commission agent who helped him file his claims never mentioned a different standard for workers with “lay day” contracts.

[17] The Claimant says he saw his Record of Employment (ROE) before he left the ship and it confirmed that his employment ended on April 15, 2020. He also says he saw that his employer sent in the ROE before May 7, 2020. 

Was the Claimant unemployed from April 15, 2020, to May 8, 2020?

[18] No, I find that the Claimant was not unemployed during this period for the following reasons.

[18] There is no ROE or contract of employment in the evidence, but I was able to rely on the Claimant’s sworn testimony that he worked 12 hours a day from March 26, 2020, until he left the ship on April 15, 2020. This matches what he told the Commission.^{Footnote 9} I also relied on his clear and consistent testimony that his employer banked half his hours and used them to pay him “lay days” during the second part of the contract.^{Footnote 10} His employer corroborated these facts.^{Footnote 11}

[19] Based on these facts, I find that the Claimant met the conditions that show he was not unemployed because his employer still had to pay him for “lay days.” I make this finding because, according to his own testimony, he worked 12 hours a day, which is more than a usual workday. His employer banked half his hours and used them to cover “compensatory” leave for the rest of the contract.^{Footnote 12} This means that his employment only ended when his contract expired.

[20] The Claimant is upset that the Commission did not provide more information and guidance about his particular situation through its website, its claim forms or its agents. However, even if the Commission made errors, the courts say the law must still be applied.^{Footnote 13}

[21] While I sympathize with the Claimant’s situation, I cannot interpret the law in any other way than its plain meaning.^{Footnote 14} EI is an insurance plan. As with other plans, claimants must meet the conditions to get benefits.^{Footnote 15} The Claimant did not meet these conditions between April 15, 2020, and May 8, 2020, since he only became unemployed under his “lay day” contract when it ended. This means he was not eligible for benefits for that period.

Conclusion

[22] The appeal is dismissed.