Digest of Benefit Entitlement Principles - Chapter 14

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CHAPTER 14

TEACHERS

14.3.0     DISENTITLEMENT AND RELIEF CONDITIONS  
     
14.3.1     Contract Termination
14.3.2     Teaching on a Casual or Substitute basis
14.3.3     Occupation Other than Teaching

14.3.0   Disentitlement and Relief Conditions

Any person who requests regular or sickness benefits may be subject to a disentitlement under EIR 33, during any non-teaching period if both of the following situations apply:

  • they were employed in teaching for any part of their qualifying period; and
  • they are under a contract of employment for teaching during their benefit period.

However, the Regulations recognize that there are circumstances under which benefits could be payable. These are:

  • the contract of employment for teaching has terminated;
  • all of the claimant's employment in teaching during their qualifying period was on a casual or substitute basis; or
  • the claimant qualifies to receive benefits in respect of employment in an occupation other than teaching.

The first determination that must be made is whether or not EIR 33 applies to the claimant at the time they file a claim for benefits. If the claimant has not had any teaching employment during their qualifying period, EIR 33 cannot be used to determine the claimant's entitlement to benefits. Entitlement to benefits for claimants in these cases would be assessed based on the same considerations as any other claimant who was not in a teaching occupation, regardless of whether or not the claimant later signs/agrees to a teaching contract that covers non-teaching periods in their benefit period.

Once it has been established that a claimant falls under the provisions of EIR 33, what must be examined is whether or not they meet any of the exempting conditions set out in EIR 33(2). Each exemption in subsection 33(2) of the Regulations is to be considered separately. Once it is determined that a claimant has met any one of the conditions, they may, subject to other eligibility criteria, become eligible for EI benefits during a week of unemployment that falls in their non-teaching period.

A teacher who does not meet the exemptions set out in EIR 33(2) is not entitled to receive benefits, other than maternity, parental or compassionate care benefits during the non-teaching period.

Each exemption will be reviewed in detail in the following section.

[ June 2008 ]

14.3.1   Contract Termination

A claimant whose contract of employment for teaching has terminated can receive benefits during any non-teaching period1.

A claimant whose contract of employment for teaching has not terminated cannot receive benefits during any non-teaching period, other than maternity, parental or compassionate care benefits, unless they can qualify to receive benefits with respect to employment in an occupation other than teaching2.

A contract for teaching can be either written or verbal. It is reasonable to conclude that there is a new contract when the employer made a bona fide offer of employment to teach in the next teaching period, meaning that the employer had a vacant teaching position to be filled during the next teaching period and the teacher accepted the offer. A simple promise of a job does not count as a genuine offer of employment. For example, an invitation to a general recruitment session during the summer non-teaching period does not constitute a genuine offer of employment even though there is a strong possibility that a teacher will be offered a teaching contract for the next school year.

A teacher's decision to verbally accept an offer of employment, but delay signing the contract until a later date during the non-teaching period will not negate the fact that a contract for teaching has been concluded as of the date the offer was made by the employer and verbally accepted by the teacher.

The contract can be for full-time teaching, for a few days each week or even a few hours each day3. Unless the contract is terminated, regardless of the terms of the contract, no benefits can be paid during any non-teaching period.

To conclude that a contract for teaching has terminated, there must be an absolute break in the teacher's employment. This question usually arises during the summer months4. To determine whether there is an absolute break in the continuity of the teacher's employment during a non-teaching period and therefore conclude that the contract has terminated, we must consider two factors.

The first factor relates to whether the teacher has, before the end of the current contract, entered into a new contract or come to a verbal agreement to return to teaching at the end of the non-teaching period5. If there is no new contract or verbal agreement to return to teaching, then we must conclude that there is an absolute break in the teacher's employment at the end of the current contract. The claimant will then be entitled to benefits from the day following the last day under contract.

However, where a contract for the next teaching period is signed during the non teaching period, and benefits had been allowed for the non-teaching period, a disentitlement under section 33 of the Regulations will apply as of the date of the signature of the contract or verbal agreement, if it is established that linkages exist (Refer to second factor).

Where the teacher has a new contract or agreement to return to teaching at the end of the non-teaching period, a second factor must be examined.

The second factor is to determine whether linkages exist between the contracts. The determination of whether or not linkages exist between contracts will assist in confirming whether or not there has been a complete severance of the employer-employee relationship. If the teacher is rehired or an agreement is made to return to teaching after the non-teaching period, there may be continuity in the teacher's employment6. Even if the new contract is signed or agreed to verbally prior to the end of the previous contract, the Commission must look for other elements of continuity or linkages between the two contracts before imposing a disentitlement.

The Commission cannot simply rely on the existence of repetitive contracts to disentitle a teacher for the non teaching period. There must be additional evidence of contract linkages and continuing attachment to the school board.

Elements to take into consideration when determining whether there was an absolute break in the continuity of a teacher's employment could include linkages such as: the carry forward of seniority from one contract year to the next; the carry forward of pension contributions from one contract year to the next; retention of sick leave credits from one contract year to the next; group insurance premiums paid by the employer over the summer period; access to group insurance plans during the non-teaching period7.

Under the terms and conditions of a collective agreement, employee benefits, such as medical and dental benefits, could continue after termination. For some teachers, medical and dental benefits are offered through agreements made through their union and paid by employees or the union after termination. These benefits, on their own, do not equate to linkages. However, if medical or dental benefits are continued through the employer, then these equate to linkages.

If it is established that a contract for the next teaching period was signed or a verbal agreement was reached before the end of the currentcontract, and that linkages exist, a disentitlement will be imposed from the start of the non teaching period because the contract in teaching has not terminated. If a new contract is signed or a verbal abreement is reached after the end of a previous contract and linkages exist between the two contracts, a disentitlement will be imposed effective the date the new contract is signed or an agreement is reached. Both factors, the existence of a contract/verbal agreement and linkages, must be present to support a disentitlement.

A teacher employed under separate contracts with one or many different school boards, will not be entitled to benefits during any non-teaching period unless all contracts have terminated.

In order to support that continuity of employment exists, the employment must normally be with the same employer or school board, even if the teaching location or school has changed. In some provinces, however, a teacher can accept a contract from a different school district for the following school year and carry over such benefits as medical or dental benefits, or accumulated sick leave from their previous contract. In these situations, the details of the provincial agreements, as well as the agreements of the different school boards or districts will have to be examined to correctly determine whether or not there is continuity of employment between one school board/district and another.

A contract of employment in teaching does not terminate only because a teacher is not working, for example when the teacher is suspended, on an approved leave of absence with or without pay8, on educational leave, sabbatical leave, sick leave9, maternity leave, or any type of leave, including deferred salary or self-funded leave10. As long as the contract is valid, a teacher is subject to the Regulation during any non-teaching period11.

[ June 2008 ]

  1. EIR 33(2)(a);
  2. EIR 33(2)(c);
  3. Renée Dupuis-Johnson (A-511-95);
  4. Oliver (A-811-00), Giamattei (A-664-01);
  5. Gauthier (A-128-95), Partridge (A-704-97), Bishop (A-151-01);
  6. Ying (A-101-98), Gauthier (A-128-95);
  7. Stone (A-367-04);
  8. Dick (S.C.C. 15540, A-267-77);
  9. St-Coeur (A-80-95);
  10. Oram (A-676-93);
  11. Taylor (A-681-90).

14.3.2   Teaching on a Casual or Substitute basis

Under paragraph 33(2)(b) of the Regulations, a teacher is entitled to benefits if their employment in teaching during their qualifying period was on a casual or substitute basis1.

The words "casual" or "substitute" must be given their usual dictionary meaning. This general interpretation may differ from particular definitions found either in provincial legislation or in labour agreements.

Employment on a casual basis refers to employment that is not regular or permanent, but is temporary or occasional. The teacher is generally on-call, with no set pattern of work, to perform the duties of another teacher for a short duration and not in a continuous or predetermined way. If the employment involves filling an unexpected or temporary absence for a short period, and if the replacement of the absent teacher can end at any time without notice, the replacement is of a casual nature for our purposes.

Employment on a substitute basis occurs when a teacher replaces another teacher on a temporary basis, for instance during a leave of absence, vacations or illness. However, if the teacher's employment as a substitute becomes fixed or regular or subject to a temporary full time or part time contract, regardless of the terms of that teaching contract, whether for a few days each week or a few hours each day, the employment can no longer be considered as substitute.

A teacher cannot benefit from the exception in the Regulation based solely on their status of casual or substitute given by the school board or under the terms of the collective agreement. The exception in the Regulation emphasizes the performance of the employment and not the status of the teacher who holds it2.

For example, a teacher may have a casual or substitute status but during the qualifying period, be called up and enter into a contract to hold employment that is not on a casual or substitute basis, but is on a regular full time or part time basis. In this situation, the teacher cannot benefit from the exception in the Regulation since the employment was not held on a casual or substitute basis.

For the purpose of the exempting condition in EIR 33(2)(b), all of the teaching employment in the qualifying period must have been on a casual or substitute basis. Once a casual or substitute teacher signs a contract for teaching, regardless of the terms of that teaching contract, the employment no longer falls under the category of "casual" or "substitute". Once a teacher has met this condition in their qualifying period, they will be exempt from a disentitlement for all non teaching periods during the corresponding benefit period.

A teacher who does not meet the definition of "casual" or "substitute" teacher falls under the provisions stated in EIR 33(2)(a). Therefore, the guidelines set out in Section 14.3.1 of this Chapter apply. That teacher will be relieved from disentitlement when the contract terminates or if they qualify to receive benefits with respect to employment in an occupation other than teaching.

Where a teacher has been employed on a casual or a substitute basis within the meaning of EIR 33(2)(b), from one teaching year to the next, and, for the school year that just ended, no contract existed but a contract is signed or agreed to for the upcoming year, that teacher would not be subject to a disentitlement for the non teaching period. In this situation, the claimant will have met both of the conditions set out in EIR 32(2)(a) & (b).

There are situations where claimants hired as substitute or replacement teachers year after year sign 10-month contracts each year for these positions. In these cases, the claimant is a teacher under a contract, regardless of the fact that it is a contract as a replacement teacher, or that, for the purpose of their collective agreement, they are referred to as a "substitute" teacher by their employer. These teachers are disentitled from benefits unless the relieving condition of contract termination is met3.

Therefore, when a claimant, during their qualifying period, had teaching employment both on a casual or substitute basis and under a contract that was still in place at the end of the school year, a disentitlement is imposed unless it is proven that the contract has terminated as defined in Section 14.3.1 of this Chapter.

There may be situations where a teacher is hired under a contract, which could be terminated at any time, to teach part time or by the lesson, for the full school year. These teachers are still under contract during the non-teaching periods that fall within their contract period as a contract to teach part time or by the lesson is not casual or substitute teaching; therefore the guidelines in Section 14.3.1 of this Chapter apply4.

[ June 2008 ]

  1. EIR 33(2)(b);
  2. Blanchet (A-103-06, CUB 65192);
  3. EIR 33(2)(a), Scott J. Bishop (A-151-01, CUB 50649);
  4. EIR 33(2)(b).

14.3.3   Occupation Other than Teaching

A claimant engaged for employment in teaching whose contract has not terminated may nevertheless be entitled to regular or sickness benefits during the non-teaching periods if he or she has, during the qualifying period, worked in an occupation other than teaching1.

In order to be entitled, the claimant must fulfill the qualifying conditions with respect to employment in an occupation other than teaching. Teaching at the post secondary or university levels is employment in an occupation other than teaching as it does not fall within the definition of a teacher as per the Regulation2.

The qualifying conditions to receive benefits require the claimant to have, in the qualifying period, a sufficient number of hours of insurable employment for work accomplished in an occupation other than teaching in order to establish a benefit period, and to have an interruption of earnings from that employment.

The rate of the benefits and weeks of entitlement for a teacher who qualifies to receive benefits with employment in an occupation other than teaching is based on the insurable earnings and hours of insurable employment in that occupation3. Should the claimant become entitled to benefits during the teaching period, the benefit rate for these benefits will be adjusted to take into account all insured employment in the rate calculation period, including the insurable earnings as a teacher.

[ June 2005 ]  [ January 2006 ] [ June 2008 ]

  1. EIR 33(2)(c);
  2. EIR 33(1);
  3. EIR 33(3).

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