M. M. v. Canada Employment Insurance Commission

M. M. v. Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2015-07-14 Neutral citation 2016 SSTGDEI 92 Reference number GE-16-329 Member Katherine Wallocha Division General Division Decision Appeal dismissed Decision Content On this page Persons in attendance Introduction Issue The law Evidence Submissions Analysis Conclusion Reasons and decision Persons in attendance M. M.: the claimant, attended the hearing via teleconference. Introduction [1] The claimant became unemployed on June 30, 2015. She filed for Employment Insurance (EI) benefits on July 2, 2015. An initial claim for EI benefits was established on July 5, 2015. The Canada Employment Insurance Commission (Commission) denied the claim because no benefits can be paid to teachers during a non-teaching period. The claimant sought reconsideration of the Commission’s decision, which the Commission maintained in their letter dated December 16, 2015. The claimant appealed to the Social Security Tribunal (SST). [2] The hearing was held by Teleconference for the following reasons: The complexity of the issue under appeal. The fact that the appellant will be the only party in attendance. The information in the file, including the need for additional information. [3] The claimant did not attend the hearing scheduled for July 13, 2016 at 9:00am MT. However, she did contact the SST and the hearing was rescheduled for the same day at 1:00pm MT. The claimant attended the rescheduled hearing. Issue [4] The issue under appeal is whether the claimant has proven that, as a teacher, she was entitled to receive EI benefits during a non-teaching period pursuant to section 33 of the Employment Insurance Regulations (Regulations). The law [5] Subsection 33(1) of the Regulations defines a non-teaching period as the period that occurs annually at regular or irregular intervals during which no work is performed by a significant number of people employed in teaching. It further defines teaching as the occupation of teaching in a pre-elementary, an elementary or a secondary school including technical or vocational school. [6] Subsection 33(2) of the Regulations states that a claimant who was employed in teaching for any part of the claimant’s qualifying period is not entitled to receive benefits, other than those payable under section 22, 23, 23.1 or 23.2 of the Act, for any week of unemployment that falls in any non-teaching period of the claimant unless a) the claimant's contract of employment for teaching has terminated; b) the claimant's employment in teaching was on a casual or substitute basis; or c) the claimant qualifies to receive benefits in respect of employment in an occupation other than teaching. [7] Subsection 52(1) of the Employment Insurance Act provides that despite section 111, but subject to subsection (5), the Commission may reconsider a claim for benefits within 36 months after the benefits have been paid or would have been payable. Evidence Information from the Docket [8] The claimant applied for regular EI benefits on July 2, 2015 stating that she is no longer working due to a shortage of work and she had worked since her last application for EI benefits. The claimant stated that she will be returning to this employer on September 1, 2015. She confirmed that she had taught the curriculum at a school in the last two years explaining that she was on a temporary contract, she had received a verbal offer of employment for a casual contract on July 2, 2015 for the next teaching period and she will accept this offer on July 6, 2015 with a start date of August 25, 2015. She further stated that she was covered on her employer’s medical and dental plan (Pages GD3-3 to GD3-13). [9] The employer submitted a Record of Employment (ROE) dated July 5, 2015 indicating that the claimant began working as a teacher on February 2, 2015 and she was no longer working due to a shortage of work on June 30, 2015 accumulating 792 hours of insurable employment (Page GD3-14). [10] The same employer submitted a ROE dated February 3, 2015 indicating that the claimant began working as a teacher on August 27, 2014 and she was no longer working due to end of contract/shortage of work on January 30, 2015 accumulating 800 hours of insurable employment (Page GD3-15). [11] The claimant was contacted by the Commission and she stated that she had two contracts throughout the previous school year; the first from August 27, 2014 to January 30, 2015 and the second from February 2 to June 30, 2015. She stated that her new contract was a temporary contract but it was not probationary. She explained that it started on August 27, 2015 and it goes until the end of the next school year and she accepted the contract verbally on the phone. The claimant confirmed that she maintains her medical, dental and disability benefits throughout the summer stating that her employer pays for her benefits because she had a contract last semester and she has a contract starting this September. She was advised that she was not payable as she has links between the contracts (Page GD3-16). [12] The Commission sent a letter dated July 29, 2015 informing the claimant that she was unable to receive EI benefits from August 27, 2015 because they consider that she is working full work weeks. Furthermore, the Commission was unable to pay EI benefits from July 6, 2015 to August 26, 2015 because no benefits can be paid to teachers during a non-teaching period. She was further informed that there are some exceptions to this rule: she could receive benefits if her service contract is ended, if she is a substitute or casual teacher and has not signed another contract, or if she worked in an occupation other than teaching. However, there is no indication that these conditions apply in her case (Page GD3-17). [13] The claimant submitted the temporary contracts she received in the previous year. She was replacing teachers who were absent from their teaching duties at two different schools within the same school board. The claimant submitted the new contract from the same school board dated July 23, 2015 which states that she will be replacing a teacher who is absent and her duties will commence on August 27, 2015 and shall terminate on April 29, 2016 (Pages GD3-19 to GD3-24). [14] The claimant was sent a Notice of Debt dated December 19, 2015 in the amount of $2,844.00 (Page GD3-30). Testimony at the Hearing [15] The claimant testified at the hearing that she works in a temporary contract position and when her contracts are up she does not know if she will have work the next school year so she applies for EI in the summer months. She stated that in July 2015, she received a letter stating that her EI was rejected and she appealed that. In September 2015, she received an acceptance letter and her access code to report the weeks she was not working during the summer months. She stated that everything was okay until December 2015 when she received a phone call stating that she would have to repay the EI benefits that she received because the issue was teaching. [16] The claimant confirmed that she was verbally offered a contract on July 2, 2015 and she further confirmed that she verbally accepted the offer on July 6, 2015. The claimant stated that the employer usually offered coverage of medical and dental benefits until August. The claimant stated that she indicated she was working “casual” work on her EI application because she had a temporary contract. [17] The claimant confirmed that during the contract from August 27, 2014 to January 30, 2015 she was replacing a teacher who was absent and therefore she was working full-time. She stated that during the contract from February 2 to June 30, 2015 she was also working full-time. [18] The claimant explained that she had no confirmation of another contract at the time that she filed her application for EI benefits stating that her contract is not confirmed until she has signed it. She added that verbal offers do not always go through as the situation might change. She stated that she could not have signed her contract earlier because the employer made her wait until she returned to work on August 27, 2015 before signing. She stated that the employer asked her “would you be able to fill in” and she assumed this was verbal confirmation and then she was told to wait until she got a written contract to sign. [19] The claimant stated that she has applied for EI benefits during the summer months for the last two years and she further confirmed that she has been working with the same employer for four years. Submissions [20] The claimant submitted that: She believes she qualifies for EI benefits as an exception to the rules for non-teaching period because she is a temporary teacher. Her temporary contract ended on June 30, 2015 and she had no confirmation of another contract at the time of her application (Page GD3-25). She is a temporary teacher. Every year, her contract ends in June and she files for EI benefits for the summer months. This year she filed her EI claim in July 2015. She did not sign her teaching contract until August 2015 and this was reported to EI. She was notified that her application was not successful and submitted her Request for Reconsideration. In September 2015, she received a letter stating that her application from July was processed successfully and she also received her access code. Then, in December 2015, she was notified that she owes all that money back. She is confused and does not understand what is going on (Page GD2-2). [21] The Commission submitted that: The claimant has not met the onus of proving that her teaching contract terminated on June 30, 2015 and that she will not be returning to work with her employer following the non-teaching period. She was offered another teaching contract with the same school board on July 23, 2015 during the non-teaching period from July 1, 2015 to August 26, 2015. The claimant also had a teaching contract with the same school board from August 28, 2014 to January 30, 2015 and from February 2, 2015 to June 30, 3015. She confirmed that on July 2, 2015 she was offered another temporary teaching contract starting August 27, 2015 and that she accepted the offer verbally on July 6, 2015; and that the employer continued to cover her sickness, dental and pension benefits during the summer months. The Commission submitted that these factors demonstrate a continuing employment relationship between the claimant and the school board. Consequently, the claimant did not experience a total severance from employment as a teacher within the meaning of paragraph 33(2)(a) of the Regulations and as defined by the Federal Court of Appeal (Page GD4-2). The claimant was employed under a full-time teaching contract from August 28, 2014 to June 30, 2015. The Commission submitted that the claimant’s employment from February 2, 2015 to June 30, 2015 was sufficiently regular, continuous and pre- determined that it does not meet the definition of casual or substitute teaching within the meaning of paragraph 33(2)(b) of the Regulations (Page GD4-3). There was no evidence that the claimant qualified for EI benefits in an occupation other than teaching. Consequently, paragraph 33(2)(c) of the Regulations does not apply. The Commission maintains that the claimant cannot be entitled to EI benefits during the non- teaching period from July 6, 2015 to August 28, 2015 because she failed to prove that she met any of the exempting conditions specified under subsection 33(2) of the Regulations (Page GD4-3). Analysis [22] A teacher will be entitled to receive EI benefits if she establishes that the termination of her employment results in a ‘genuine severance’ of the relationship with the employer. In other words, the teacher will have to satisfactorily establish that, as a result of such severance, she was really unemployed (Canada (Attorney General) v. Robin, 2006 FCA 175). [23] In this case, the Tribunal accepts the evidence that the claimant was working as a teacher with a temporary contract that ended on June 30, 2015. On July 2, 2015 she was verbally offered a new contract for the coming school year which she verbally accepted on July 6, 2015. This contract was dated July 23, 2015. The Tribunal further accepts the claimant’s statements and testimony that her employer pays for her benefits throughout the summer months because she had a contract last semester and has a contract starting in September 2015 and that during the previous school year, the claimant was working on a full-time basis while replacing permanent teachers. [24] Under subsection 33(2) of the Regulations, a teacher who holds employment in teaching during part of his or her qualifying period is not entitled to receive any benefits for the weeks of unemployment which are included in any non-teaching period. However, subsection 33(2) of the Regulations also contains three exceptions to this disentitlement. These are three distinct exceptions and not one exception with three conditions to be met for it to apply (Canada (Attorney General) v. Blanchet, 2007 FCA 377). [25] While it is true that the claimant’s teaching contract ended on June 30, 2015, the Tribunal is not satisfied that the claimant’s employment ended because she was offered another contract for the following school year within a few days of her previous contract ending and she maintained her medical and dental benefits throughout the summer months. Therefore, it cannot be said that the claimant had a genuine severance from her employment pursuant to paragraph 33(2)(a) of the Regulations. The claimant argued that the contract was not signed and things might change however, she also stated that she accepted the employer’s offer of employment as verbal confirmation. The Tribunal does not consider it relevant that the claimant did not have a signed contract until she returned to work as the verbal offer and the continuance of employment benefits is sufficient to show a continuing employment relationship with her employer. [26] The Tribunal recognizes that the claimant was teaching under a temporary contract however, the exception emphasizes the performance of the employment and not the status of the teacher who holds it. As explained in Blanchet “a teacher may, for example, have substitute teacher status but, during the qualifying period, be called up and enter into a contract to hold employment not on a casual or substitute basis but on a regular full-time or part-time basis. Even if the teacher retains his or her status as a substitute under the collective agreement governing the school board and the teachers’ union, he or she is not a substitute teacher for the purposes of the part-time employment he or she contracted. In such a case, the teacher does not meet the conditions of the exception under paragraph 33(2)(b). As was stated by our colleague Madam Justice Sharlow at paragraph 2 of Stephens v. Canada (Minister of Human Resources Development), supra, it is possible “that a teacher may have a period of employment as a supply teacher that is sufficiently regular that it cannot be said to be ‘employment on a casual or substitute basis’.” [27] The Tribunal is unable to conclude that the claimant met the requirements that her employment was on a casual or substitute basis in accordance with paragraph 32(2)(b) of the Regulations as the claimant worked full-time during the period of her contracts. [28] Further, the claimant has not provided any evidence to show that she worked in another occupation other than teaching thus the claimant has not met the conditions for the exception in paragraph 32(2)(c) of the Regulations. [29] The Tribunal finds that the claimant was still under contract during the months of July and August 2015 and her employment was continuous and not on an occasional or substitute basis. While the claimant argued that she is a temporary teacher and her contract ends every year and she files for EI benefits for the summer months, the Tribunal is unable to review the information regarding her employment in other years and therefore cannot provide an explanation as to why she was entitled to receive EI benefits in other years. [30] The claimant further argued that she was initially denied EI benefits and requested the Commission reconsider their decision. She was then authorized to have EI benefits but in December 2015 she was notified that she has to repay this money. While the Tribunal acknowledges the claimant’s concerns, the Tribunal recognizes that the Commission has 36 months to review claims for EI benefits pursuant to section 52 of the Employment Insurance Act. [31] For these reasons, the Tribunal concludes that the claimant has not proven that, as a teacher, she was entitled to receive EI benefits during the non-teaching period in accordance with section 33 of the Regulations. Conclusion [32] The appeal is dismissed.