Digest of Benefit Entitlement Principles - Chapter 4

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Chapter 4 — Week of unemployment

4.3.0   Hours Controlled by Employer

This is the most common type of employment: the worker provides services for compensation pursuant to a contract of service. With respect to such workers, a general definition of a full working week is given in the legislation along with some clauses for specific types of workers.

4.3.1   Employees in General

For most employees, any partial working week for which less than the full weekly compensation is received is a week of unemploymentFootnote 1. The full working week consists of the number of hours normally worked by full-time employees in the same grade, class or shift at the premises where the claimant is employedFootnote 2.

In determining whether or not a person has worked a full working week, holidays observed at the premises where the person is employed are counted as working days whether or not compensation is received for these. The same is true for the immediately preceding or following day when it is considered part of the holidayFootnote 3. On the other hand, if the week under consideration is shown to be a week of unemployment, holidays and days off within that week are regarded as non-working days provided that they are unremunerated.

Exceptionally, when the full working week of a class of workers is much shorter than that normally worked elsewhere by full-time employees doing similar work, this is considered to be a week of unemploymentFootnote 4.

It must be remembered that the amount of wages received for a full working week is not a decisive factor. A person employed in a government project under which she received $25 per week for 30 to 37 hours of work was held to be not unemployed as she worked approximately the same number of hours as other employeesFootnote 5. The number of days worked is not a decisive factor either. This is because the test relates to the number of hours worked in the week. The compressed workweek may be a good example of an employee who works a full working week in less than five days.

4.3.2   Piece Workers

With respect to piece workers who do not control their working hours, the full working week is not based on the number of hours but solely on the number of days per week normally worked by employees in the same grade, class or shift at the premises where they workFootnote 6. Consequently, a week of unemployment is one in which the claimant works less than this number of days.

The above rule applies to any worker who is remunerated on a piece, mileage or other unit rateFootnote 7, but does not in the case of a railway employee paid on a mileage basisFootnote 8.

4.3.3   Railway Employees

In the case of railway employees paid on a mileage basis, reference must first be made to the specific period under consideration, that is the two-week period covered by the weekly claim form submitted by the claimantFootnote 9. If the amount of wages earned during those two weeks is less than twice the maximum weekly insurable earnings, each week is deemed to be a week of unemployment; if not, each week is deemed to be a full working weekFootnote 10. That is to say, the number of hours and days worked in each week or the total for both weeks is not a decisive factor.

In exceptional circumstances where a weekly claim form covers only one week instead of twoFootnote 11, reference should be made to the rules applicable to piece workers. As for railway employees who are not paid on a mileage basis, the full working week is the same as that of employees in general.

4.3.4   Employees in Farming or Horticulture

Workers employed in farming are not considered to be unemployed during any week in which they work at least five days and at least thirty-five hours in the aggregate. The same is true for workers employed in horticultureFootnote 12.

This clause applies only to employees whose working hours are controlled by an employer. Workers in agriculture or horticulture who control their own working hours are governed by another regulatory provisionFootnote 13.

4.3.5   Lay Days or Periods of Leave

In some workplaces, employees will regularly work more hours, days or shifts than that normally worked in a week by those who are employed full time elsewhere. What comes to mind are isolated work mines or sites, ocean platform drilling rigs and vessels on the St. Lawrence or Great Lakes, or along the Pacific and Atlantic coasts.

Many other workplaces whose operations are continuous have also adopted similar uninterrupted work patterns. Quite often in these cases employees will work for 4, 5, 6, or 7 continuous days, followed by a period of leave. Another pattern of work that is available is one permitting the employee to work more hours in a week according to a schedule and as such accumulate a period of leave within an established calendar.

Specific provisions in the contract of employment or the collective agreement will generally provide the method pursuant to which the period of leave will be determined. There are two basic methods for determining the period of leave: one is based on a credit system whereby credits are earned and accumulated based on the number of hours or days worked, while the other method is based on an established schedule alternating periods of work and leave, during a period of employment.

Whenever a person has suffered an interruption of earningsFootnote 14 and a benefit period is established, the question that arises is one of determining if that person has a week of unemployment. The ActFootnote 15 stipulates that where in each week an insured person works a greater number of hours, days or shifts than are normally worked in a week by a person employed in full-time employment and is entitled, pursuant to an employment agreement, to a period of leave, the claimant shall be deemed to have worked a full working week during each week that falls wholly or partly in the period of leave. When both conditions are present, the claimant is considered as being not unemployed during any week in which that period of leave falls. The first condition relates to the work itself and the second condition relates to an entitlement under an employment contract.

"Entitled" signifies to furnish with proper grounds for seeking or claiming something. It cannot be presumed that an agreement providing for a period of leave is in existence, the file must contain the evidence of the existence of such an agreement providing for the entitlement of lay days or for a period of leave. A decision to consider that a person is not unemployed for the above reasons must be based, as any other decision, on tangible evidence.

When the collective agreement or the contract of employment does not refer to lay days or to a period of leave for working greater number of hours, days or shifts than are normally worked during a week by persons employed in full-time employment, we have to conclude that these people suffer a cessation of employment at the conclusion of each period of work. These persons are no different than any other person who would work long hours and is paid accordingly and therefore, they are considered unemployed.

With respect to the accumulated leave credit system, what must be determined when a stoppage of activities or a lay-off or separation occurs is whether, according to the contract of employment or collective agreement, the insured person has a right to liquidate the lay days or accumulated leave credits. If such is the case, then that person can be considered unemployed only after the expiration of the period of leave that ensued from such lay days or accumulated leave creditsFootnote 16. However, if the collective agreement or the employment contract stipulates that the claimant loses those lay days or accumulated leave credit at the cessation of employment or stoppage of activities, the claimant is considered unemployed from the cessation of employment since there is no longer an entitlement to a period of leaveFootnote 17. In such case, the issue may be one of allocation of earningsFootnote 18.

With regard to the second method, which is an established schedule alternating period of work and leave, the week in which the lay days or period of leave falls cannot be considered a week of unemployment when it falls within a period of employmentFootnote 19. However, if in a week the lay day or period of leave falls after the cessation of employment, the claimant will be considered unemployed for that week. In fact, it is considered that the established schedule of alternate periods of work and leave is interrupted for the duration of the stoppage of activities or of the cessation of employment, provided that, during that week, the insured person did not have days without work prior to the stoppage of activities or the cessation of employment.

When operations resume there may be difficulties in determining whether or not the claimant remains unemployed now that the schedule of work has been reactivated. When the effective first day of work is the beginning of the week or is a day other than the beginning of the week, and it is followed by a period of leave in that week, the claimant will be considered as not unemployed for that week. Otherwise, the issue will be one of allocation of earningsFootnote 20.

Footnotes

Footnote 1

EIA 11;

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Footnote 2

EIR 31(1);

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Footnote 3

EIR 29(3);

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Footnote 4

EIR 31(2); Jurisprudence Index/week of unemployment/babysitting/;

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Footnote 5

Jurisprudence Index/week of unemployment/government programs/; G. Roy (A-1166-87, CUB 14399).

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Footnote 6

EIR 31(3);

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Footnote 7

EIR 31(3);

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Footnote 8

EIR 29(1).

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Footnote 9

see 1.9.0, "Payment of Benefit"; see 1.9.1, "Continuing Claim Required";

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Footnote 10

EIR 29(1); EIA 14(1.1);

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Footnote 11

see 1.9.1, "Continuing Claim Required."

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Footnote 12

EIR 29(2);

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Footnote 13

EIR 30(1), (4).

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Footnote 14

see 2.3.2, "Lay Days or Periods of Leave";

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Footnote 15

EIA 11(4); EIR 14(3);

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Footnote 16

Jurisprudence Index/interruption of earnings/compensatory leave/; G. Kieley (A-708-92, CUB 20866); G. Keagan (A-762-90, CUB 16027A); K. Kelly (A-106-89, CUB 16029);

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Footnote 17

Jurisprudence Index/interruption of earnings/compensatory leave/; H. Fortin (A-220-87, CUB 13443);

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Footnote 18

EIR 36(9);

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Footnote 19

Jurisprudence Index/interruption of earnings/compensatory leave/;

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Footnote 20

EIR 36(4).

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