Employment Insurance (EI)

Decision

Issue 1

[1] The appeal is dismissed. This means the Canada Employment Insurance (Commission) correctly calculated the Appellant’s weekly benefit rate.

Issue 2

[2] The appeal is dismissed. The Appellant received earnings and the Commission allocated (in other words, assigned) those earnings to the right weeks.

Overview

Issue 1

[3] The Appellant applied for regular Employment Insurance (EI) benefits on June 27, 2023, and established a claim on June 4, 2023.

[4] The Appellant worked for “X” until June 2, 2023, and was dismissed by the employer.

[5] The Appellant’s qualifying period was established from June 5, 2022, to June 3, 2023. Based on the Appellant’s regional rate of unemployment (5.2 percent) in the area where she resides (Vancouver), the number of best weeks required for the calculation of her weekly benefit rate was 22.

[6] When the employer submitted an amended Record of Employment, the Commission had to re-calculate the Appellant’s claim as follows: Within the Appellant’s qualifying period, the 22-weeks containing the highest insurable earnings were identified with total insurable earnings of $15,931.02 in the 22-week calculation period. The Commission further added $1,574.36 of vacation pay and determined the Appellant’s total insurable earnings were $17,505.38. When this total was divided by 22-weeks, it resulted in weekly insurable earnings of $795.69.

[7] In summary: The calculation of the benefit rate was as follows: $17,505.38 (insured earnings in the calculation period) divided by 22 (required weeks) equals $795.69 (weekly insurable earnings) multiplied by 55 percent equals $437.63 (rounded to $438.00) This was the Appellant’s new benefit rate.

Issue 2

[8] The Appellant received $1,574.36 in vacation pay and $1,480.00 in severance pay (totalling $3,054.36) from her former employer. The Commission decided that the money was “earnings” under the law because it was severance pay and vacation pay.

[9] The law says that all earnings have to be allocated to certain weeks. What weeks earnings are allocated to depends on why you received the earnings.^{Footnote 1}

[10] The Commission allocated the earnings starting the week of June 4, 2023, at an amount of $700.84 per week. This is the week the Commission said the Appellant was separated from her employment. The Commission said that being separated from her job was why the Appellant received the earnings.

[11] The Appellant says she disagrees with the Commission’s calculation of her overpayment.

Matters I have to consider first

The Appellant was missing a document in the Appeal Record (GD4)

[12] Before the hearing commenced, the Appellant confirmed she didn’t have the Commission’s representations to the Tribunal listed as GD4. I explained to the Appellant that with her consent we could continue with the hearing and the Tribunal would send GD4 after the hearing. I further explained to the Appellant she could send post-hearing submissions on GD4. The Appellant provided her consent to proceed with the hearing and provide oral testimony.

[13] On February 29, 2024 (the day after the hearing) the Appellant confirmed she received GD4. The Appellant then indicated she thought she had until March 10, 2024, to provide post-hearing submissions. The Appellant subsequently requested that she have until March 15, 2024, to file post-hearing submissions.

[14] On March 6, 2024, I sent the following letter to the Appellant: “Since the Appellant confirmed by e-mail she received the GD4 representations from the Commission on February 29, 2024, I’m asking the Appellant to submit her post-hearing submissions no later than Tuesday March 12, 2024” (GD13).

[15] The Appellant’s post-hearing submissions were received by the Tribunal on March 12, 2024 (Noon Eastern Time). I accepted the post-hearing submissions, and they were listed in the Appeal Record as GD14-1 to GD14-21. I also reviewed the post-hearing submissions and have addressed them in the decision that follows.

Issue 1

[16] Did the Commission correctly calculate the Appellant’s weekly benefit rate?

Analysis

[17] The weekly rate of benefit is the maximum amount a claimant may receive for each week in the benefit period. The basic benefit rate is 55 percent of the weekly insurable earnings as specified under the law.^{Footnote 2}

[18] The benefit rate of claimants (excluding fishers and the self-employed) is calculated using a variable number of best (highest) weeks of insurable earnings during the qualifying period as defined in the law.^{Footnote 3} The number of best weeks required for the calculation period (as defined in the law) ranges from 14 to 22, depending on the unemployment rate in the area of the claimant’s usual place of residence in effect at the beginning of the benefit period.^{Footnote 4}

[19] The weekly insurable earnings amount is determined by using the total insurable earnings in the best weeks divided by the number of weeks specified in the Table (set out in the law) according to the unemployment rate in the area of the claimant’s usual place of residence.^{Footnote 5}

Did the Commission correctly calculate the Appellant’s weekly benefit rate?

[20] I find the Commission correctly calculated the Appellant’s weekly benefit rate. I make this finding because the Commission provided the correct details of the calculation they used. Specifically, the Commission explained that the Appellant had $17,505.38 (insured earnings in the calculation period) divided by 22 (required weeks) which equaled $795.69 (weekly insurable earnings) multiplied by 55 percent which equaled $437.63 rounded to $438.00. This meant the Appellant’s new weekly benefit rate was$438.00.

[21] I realize the Appellant wasn’t sure why her weekly benefit rate increased from $436.00 to $438.00. On this matter, the Commission explained that the employer attached insurable hours to the Appellant’s vacation pay that was paid on separation in error and those hours were changed to 15-hours (GD3-29 to GD3-30).

[22] In short, the Commission correctly determined the Appellants benefit rate as $438.00 per week (GD3-32).

Issue 2

[23] I have to decide the following two issues:

1. a) Is the money that the Appellant received earnings?
2. b) If the money is earnings, did the Commission allocate the earnings correctly?

Analysis

Is the money that the Appellant received earnings?

[24] Yes, the vacation pay ($1,574.36) and severance pay ($1,480.00) the Appellant received were earnings. Here are my reasons for deciding that the money is earnings.

[25] The law says that earnings are the entire income that you get from any employment.^{Footnote 6} The law defines both “income” and “employment.”

[26] Income can be anything that you got or will get from an employer or any other person. It doesn’t have to be money, but it often is.^{Footnote 7} Case law says that vacation monies and severance pay are earnings.^{Footnote 8}

[27] Employment is any work that you did or will do under any kind of service or work agreement.^{Footnote 9}

[28] The Appellant’s former employer gave her vacation pay ($1,574.36) and severance pay ($1,480.00). The Commission decided that this money was vacation pay and severance pay. So, it said that the money was earnings under the law.

[29] The Appellant says she doesn’t understand why she has an overpayment.

[30] The Appellant has to prove that the money is not earnings. The Appellant has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not that the money isn’t earnings.

[31] I find the vacation pay and severance pay the Appellant received was earnings, because the monies came from her employment. I realize the Appellant indicated she didn’t understand why she had an overpayment of $1,076.00. On this matter, I wish to emphasize that as a result of the change to the allocation of the Appellant’s monies paid on separation she received EI benefits she wasn’t entitled to receive. In short, the amount of $700.84 was applied to the Appellant’s claim in each week from June 4, 2023, to July 8, 2023, and a balance of $206.00 to the week of July 9, 2023. It was the allocation of those monies which meant the Appellant was overpaid EI benefits and this created the overpayment amount.

Did the Commission allocate the earnings correctly?

[32] The law says that earnings have to be allocated to certain weeks. What weeks earnings are allocated to depend on why you received the earnings.^{Footnote 10}

[33] The Appellant’s earnings were vacation pay and severance pay. The Appellant’s employer gave the Appellant those earnings because the Appellant was dismissed from her job.

[34] The law says that the earnings you get for being separated from your job have to be allocated starting the week you were separated from your job. It doesn’t matter when you actually receive those earnings. The earnings have to be allocated starting the week your separation starts, even if you didn’t get those earnings at that time.^{Footnote 11}

[35] I find the Appellant was separated from her job starting the week of June 4, 2023. I find this because the Appellant’s Record of Employment indicated her last day paid was June 2, 2023. Furthermore, the Appellant confirmed her last day worked was June 2, 2023 (GD3-17 and GD14-2).

[36] The amount of money to be allocated starting that week (June 4, 2023) is $700.84. This is because $700.84 is the Appellant’s normal weekly earnings. This means that starting the week of June 4, 2023, $700.84 is allocated to each week. If there is any amount of earnings that is left over, it will be allocated to the last week. In the Appellant’s case, there was a balance of $206.00 applied to the week of July 9, 2023.

[37] Since the Appellant has expressed confusion about the calculation of her normal weekly earnings, I will provide a more detailed summary of the Commission’s calculation below.

[38] The Appellant’s average earnings for her last week worked (May 28, 2023, to June 2, 2023) was determined as $655.90 and these earnings were topped-up with $44.94 from the total monies paid on separation (655.90 plus 44.94 equals $700.84) which brought the Appellant’s earnings in this week to her average normal weekly earnings. This left a remainder of $3,009.42 ($3,054.36 minus $44.94 equals $3,009.42) in monies on separation to be applied to the Appellant’s claim. Since the allocation of the monies was paid on separation, the Appellant’s benefit period was extended by four-weeks as she wasn’t payable owing to the allocation of her earnings.

Additional submissions from the Appellant

[39] I recognize the Appellant submitted she was notified her Goods and Services tax credit and BC climate action tax credit were applied towards her overpayment of $1,076.00. The Appellant also indicated that $131.70 representing the GST was applied twice towards the total amount. The Appellant then requested to be re-imbursed the amount of “$131.70 x2= $263.40”(GD14). On this matter, I have no authority to re-imburse the Appellant any monies. In short, this was a matter the Appellant must address with the Canada Revenue Agency (CRA).

[40] I further recognize the Appellant was unhappy and displeased about her overpayment. Nevertheless, I have no authority to write-off or reduce the Appellant’s overpayment.^{Footnote 12}

[41] Finally, I realize the Appellant disagrees with the Commission’s calculation of her overpayment. Nevertheless, I must apply the law to the evidence before me. In other words, I cannot re-write or re-fashion the law even for compassionate reasons.^{Footnote 13}

Conclusion

Issue 1

[42] The appeal is dismissed.

[43] The Commission correctly allocated the Appellant’s weekly benefit rate.

Issue 2

[44] The appeal is dismissed.

[45] The Appellant received $3,054.36 in earnings. These earnings (less $44.94) were allocated starting the week of June 4, 2023, at $700.84 per week. The balance of $206.00 was applied to the week of July 9, 2023.