HM v Canada Employment Insurance Commission

HM v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2020-01-24 Neutral citation 2020 SST 230 Reference number GE-19-4272 Member Amanda Pezzutto Division General Division Decision Appeal dismissed Related decisions SST - HM v Canada Employment Insurance Commission - 2020 SST 225 - 2020-03-13 - Appeal Division SST - HM v Canada Employment Insurance Commission - 2021 SST 20 - 2021-01-12 - General Division Decision Content On this page Decision Overview Issues Analysis Conclusion Decision [1] I am dismissing the Claimant’s appeal. Overview [2] The Claimant stopped working for medical reasons. He applied for employment insurance sickness benefits. The Claimant had a violation and so he needed a higher number of hours to qualify for benefits. The Canada Employment Insurance Commission (Commission) decided that the Claimant did not have enough hours to qualify for benefits. The Claimant asked the Commission to reconsider its decision. The Commission did not change its decision. The Claimant appealed to the Tribunal. [3] I am dismissing the Claimant’s appeal. The Claimant has a subsequent violation. He needs a higher number of hours to qualify for benefits. He is entitled to a five week qualifying period extension. Even with the qualifying period extension, he does not have enough hours to qualify for benefits. Issues [4] Issue 1 – What is the duration of the Claimant’s qualifying period? [5] Issue 2 – How many hours does the Claimant need to qualify for benefits? [6] Issue 3 – Does the Claimant have enough hours to qualify for benefits? Analysis Issue 1: What is the duration of the Claimant’s qualifying period? [7] The Claimant’s qualifying period should run from July 1, 2018 to August 3, 2019. He is entitled to a five week qualifying period extension. [8] The qualifying period is the time immediately before the benefit period. The Commission looks at the hours in the qualifying period to decide if a claimant qualifies for benefits. Usually, a qualifying period is 52 weeks long.Footnote 1 In some cases, the qualifying period can be longer. If a claimant does not work during their qualifying period because of an illness, the Commission can extend the qualifying period.Footnote 2 The Commission will extend the qualifying period by the same number of weeks that the claimant cannot not work. For example, if a claimant cannot work at all for three weeks during their qualifying period because of an illness, the Commission will extend the qualifying period by three weeks. The qualifying period would be 55 weeks long. [9] In this case, the Commission decided that the Claimant’s qualifying period should be 52 weeks. The Commission decided that the qualifying period should run from August 5, 2018 to August 3, 2019. [10] At the hearing, the Claimant said that he had been unable to work from May 14 to June 24, 2019 for medical reasons. He said that his gall bladder flared up and he went to the hospital on May 14, 2019. He spent more than a week in the hospital and did not return to work until June 24, 2019. He did not have any work or earnings for five full weeks – May 19 to June 22, 2019. [11] The Commission argues that the Claimant did work and receive earnings during this period. The Commission argues that the Record of Employment (ROE) shows that the Claimant earned more than $4000 during the month of May and more than $5000 during the month of June. The Commission argues that the Claimant must have worked and received earnings from May 19 to June 22, 2019 because of the earnings on the ROE. [12] The Claimant’s testimony was straightforward and clear. He recalled dates, and used holidays to back up his memory. I find his statements reliable. [13] I do not think the ROE is more reliable than the Claimant’s statements. There is an obvious error on the ROE. The Claimant worked for the employer for five full months, but the employer only completed three pay periods in block 15C. The employer should have completed five pay periods in block 15C to reflect the five months of employment. There is no evidence showing that the Commission contacted the employer to get the missing pay period information. The fact that there is an error on the ROE makes the ROE less reliable. [14] The number of hours on the ROE also support the Claimant’s statements. According to the ROE, the Claimant worked 506 hours over five full months – a period of about 22 weeks. If the Claimant worked in each week, he would have worked an average of 23 hours a week. The Claimant said that he worked full-time. He was working on a farm during the summer season. I do not think it is likely that the Claimant worked fewer than 25 hours a week over the summer season at a farm. If the Claimant worked fewer than 22 full weeks, then the average number of hours he worked in each week would be higher. This suggests that the Claimant did miss several weeks of work during the season. [15] I think the Claimant’s statements are credible. I do not think the information on the ROE is more reliable than the Claimant’s statements. There is an error on the ROE and the Commission did not ask the employer to explain the error. The number of hours on the ROE support the Claimant’s statements. I find that it is likely that the Claimant did not work for his employer from May 14 to June 24, 2019. [16] I can extend the Claimant’s qualifying period for each full week that he did not work and did not receive any earnings. At the hearing, the Claimant said that he worked for a few days before he went into the hospital on May 14, 2019. This means that he had earnings in the week beginning May 12, 2019. This week cannot count towards the qualifying period extension. The Claimant did not work at all from May 19 to June 22, 2019. He returned to work on Monday, June 24, 2019 and worked in that week. The Claimant had five full weeks without any work and any earnings. [17] The Claimant is entitled to a five week qualifying period extension. His qualifying period should run from July 1, 2018 to August 3, 2019. Issue 2: How many hours does the Claimant need to qualify for benefits? [18] The Claimant needs 1330 hours in his qualifying period to qualify for benefits. This is because he has a subsequent violation. [19] When a claimant makes a false or misleading statement, the Commission can impose a violation. A violation is a type of punishment that increases the number of hours a claimant needs to qualify for benefits in the future. The severity of the violation, or the “classification” determines how many more hours the claimant will need. The Commission classifies violations as minor, serious, or very serious, depending on the amount of the overpayment. If the claimant gets a second violation within five years of the first notice of violation, the Commission always classifies the second violation as a subsequent violation.Footnote 3 [20] A violation either remains in effect for five yearsFootnote 4 or until the claimant qualifies for benefits twice,Footnote 5 whichever happens first. [21] The Commission issued several violations against the Claimant. On June 11, 2014, the Commission issued a serious violation. On May 29, 2015, the Commission issued a subsequent violation. The Commission also issued another subsequent violation on February 25, 2016. However, the Commission removed this violation during a reconsideration request. [22] The Commission considered starting the Claimant’s benefit period on August 4, 2019. This is more than 5 years after the June 11, 2014 notice of violation. This means that the June 11, 2014 violation no longer applies to the Claimant. It is fewer than five years after the May 29, 2015 violation. This means that the May 29, 2015 violation still applies to the Claimant. The February 25, 2016 violation no longer exists, so this violation does not apply to the Claimant. The May 29, 2015 violation is the only violation that still applies to the Claimant. [23] The Claimant argues that the May 29, 2015 should no longer be classified as a subsequent violation because the June 11, 2014 violation is no longer in effect. He argues that the May 29, 2015 violation is no longer subsequent to any active violation. He argues that the Commission should reclassify the May 29, 2015 violation. [24] I understand the Claimant’s argument. However, the law does not give me the authority to reclassify violations. The Commission classifies violations at the time they issue the violation. When the Commission issued the May 29, 2015 violation, they classified it as a subsequent violation because it had been fewer than five years since they had issued the previous violation. I cannot change this classification. The Claimant still has a subsequent violation and the Commission must take it into account when determining how many hours the Claimant needs to qualify for benefits. [25] The Commission provided evidence about the number of hours the Claimant needed to qualify. On August 4, 2019, the regional rate of unemployment in the Claimant’s area was 6.7%. The Claimant has not provided any evidence showing that the Commission made a mistake determining his home area or calculating the rate of unemployment. I accept the Commission’s information about the regional rate of unemployment. [26] With a subsequent violation and a 6.7% rate of unemployment, the Claimant needs 1330 hours to qualify for benefits. This is according to the table in the Employment Insurance Act.Footnote 6 Issue 3: Does the Claimant have enough hours to qualify for benefits? [27] The Claimant has not proven that he had enough hours to qualify for benefits. [28] The Claimant argues that he should have enough hours in his extended qualifying period to qualify for benefits. [29] The Commission argues that the Claimant does not have enough hours to qualify for benefits, even with the extended qualifying period. [30] The Claimant has two ROEs. One, reflecting work he did from March 1 to July 31, 2019, falls entirely within his qualifying period. This ROE has 506 hours. [31] The second ROE overlaps with the start of the Claimant’s qualifying period. Some of the hours from this job fall within the qualifying period, and some of the hours are outside of the qualifying period. The Claimant worked a total of 940 hours between May 20 and November 30, 2018. The Commission estimates that the Claimant worked an average of 40 hours a week in this employment. However, this ROE says that the Claimant did not work at all during the month of July 2018. The ROE says this because the employer put a nil, or blank, pay period for July 2018 in block 15C of the ROE. [32] The Claimant has not provided a paystub for the month of July 2018. He has not provided any evidence contradicting the employer’s information on the ROE. I think it is likely that the ROE is accurate. It is likely that the Claimant did not work at all during the month of July 2018. Even though I have extended the Claimant’s qualifying period by five weeks, the Claimant did not work for four of those weeks. [33] The Commission provided a copy of its worksheet.Footnote 7 The Commission uses this worksheet to calculate the number of hours the Claimant worked in each week. I know that the Commission’s calculation worksheet is not an exact record of the hours the Claimant really worked. However, the Commission’s calculations estimate that the Claimant worked about 40 hours a week. At the hearing, the Claimant said that he worked full-time. I think it is likely that the Commission’s estimate is accurate. The Commission’s calculation worksheet is the most reliable evidence I have that shows how many hours the Claimant worked in his qualifying period. I choose to rely on the Commission’s calculation worksheet. [34] If I add all of the hours on the calculation worksheet between July 1, 2018 and August 3, 2019, I get a total of 1211 hours in the Claimant’s qualifying period. The Claimant needs 1330 hours to qualify for benefits. I find, on a balance of probabilities, that the Claimant does not have enough hours to qualify for benefits. Conclusion [35] I am dismissing the Claimant’s appeal. He does not have enough hours to qualify for benefits. Heard on: January 8, 2020 Method of proceeding: Teleconference Appearances: H. M, Appellant Footnotes Footnote 1 Section 8(1) of the Employment Insurance Act. Footnote 2 Section 8(2)(a) of the Employment Insurance Act. Footnote 3 Sections 7.1(4), 7.1(5), and 7.1(6) of the Employment Insurance Act. Footnote 4 Section 7.1 Footnote 5 Section 7.1(3) Footnote 6 Section 7.1(1) of the Employment Insurance Act. Footnote 7 GD8-3 to GD8-4.