Archived – Digest of Benefit Entitlement Principles Chapter 8 - Section 9

8.9.0 Disentitlement for a number of days in a week

The Commission has the authority to make regulations specifying the number of days of disentitlement in a week to be imposed on a claimant who has lost or cannot resume a part-time employment by reason of a stoppage of work due to a labour dispute. It is in this context that a disentitlement in a week may be, in accordance with the regulation ^{Footnote 1} , for a period between 0 and 5 days.

It is easy to see therefore the importance to distinguish and establish as an actual fact that what the claimant lost or is unable to resume is part-time employment, or not. The effect of the disentitlement will obviously not be the same ^{Footnote 2} .

8.9.1 Part-time employment

The employment at issue here is obviously a part-time employment that the claimant has lost or is unable to resume for the reasons we know ^{Footnote 3} . Generally, part-time employment means employment that is engaged otherwise than continuously full-time. Part-time employment may include a related period of work at full-time as, for example, the person who works full-time one week every two weeks.

The pattern of employment of the person at the business may, at a certain time, change, such that, instead of full-time employment the person from that time on holds a part-time job, or vice versa. The issue to be decided when considering if it is a full-time or a part-time employment that a claimant has lost or is unable to resume is the pattern of employment of the person at the moment he or she lost or could not resume a previous employment because of a stoppage of work.

The claimant's pattern of employment at the business may be different the moment he or she is unable to resume a previous employment than what it had been before. It may be that the claimant is unable to resume a part-time employment because of the stoppage of work, but he or she had in the past a full-time job for this same employer. The converse is also possible: it is full-time employment that the claimant is unable to resume due to the stoppage of work.

8.9.2 Disentitlement proportional to part-time employment

For the claimant who has lost or is unable to resume a part-time employment because of a stoppage of work due to a labour dispute, the number of days of disentitlement in a week will be in accordance to that prescribed in the regulation as follows ^{Footnote 4} :

. . . the number of days of disentitlement of the claimant in a week is, for the percentage that is set out in column I of the table to this subsection and that is the ratio between the claimant’s average weekly insurable earnings in that part-time employment and the weekly insurable earnings as determined under section 14 of the Act, the corresponding number of days of disentitlement set out in column II of that table ...

The number of days of disentitlement in a week is a function of the claimant's average weekly earnings from that part-time employment and its ratio to the weekly insurable earnings in the claimant's rate calculation period. Thus when the percentage issued from the ratio between one and the other is small or large, the days of disentitlement in a week will vary from 0 to 5.

The objective here is to disentitle a claimant, or in other words reduce the weekly benefits, only to same extent as the part-time employment that has been lost or cannot be resumed due to the stoppage of work. This introduces the notion of equity that had not been part of the prior provisions ^{Footnote 5} .

It must be stated that elements other than the two earnings cited above could have been chosen for comparison purposes. The fact is, these earnings, collectively, represent what we want to measure. That is, the relative importance of the part-time employment that a claimant has lost or is unable to resume due to a labour dispute, to the employment(s) used to establish the weekly rate of benefit ^{Footnote 6} . Once the relative importance between these two earnings is determined, all that remains is to find its place in percentage on the scale of 0 to 5 days of disentitlement in a week.

The disentitlement must be for a precise number of days in a week and for as long as the disentitlement is not ended or suspended ^{Footnote 7} ; these days where the disentitlement may apply are not predetermined and may, as well, not be the same from week to week. If in the course of a given week, the prescribed number of days of disentitlement cannot be completely served, obviously the balance must not be carried over to another week.

The fact that the start or end of a period of disentitlement occurs in the middle of a week does not change anything in respect of the number of days of disentitlement that will be rendered in a week of unemployment. What must be ensured is that the number of days of disentitlement applied to either one or the other of these weeks does not exceed the number of days that are affected by the stoppage of work. If, for example, the prescribed disentitlement is to be for three days a week and the end of the period of disentitlement occurs on a Monday; we would only apply to this week one-day of disentitlement.

Finally, because the claimant's weekly insurable earnings in the rate calculation period could change from one benefit period to the next, the calculation of the number of days of disentitlement in a week could equally change from one benefit period to the next. Thus, even where it is the same part-time employment and the same stoppage of work which straddles two benefit periods, the exact number of days of disentitlement in a week for this same claimant may in one benefit period be different from the next.

8.9.3 Average weekly earnings from part-time employment

The regulation introduces the concept of average weekly earnings from a part-time employment that the claimant has lost or is unable to resume because of a stoppage of work due to a labour dispute.

At the outset it must be shown that at the very moment that this part-time employment was lost or could not be resumed, the claimant had worked or would have worked in this employment according to a definite pattern. In this context it is logical that the determination of the average weekly earnings from a part-time employment would be a function of this pattern of employment.

The information on the record of employment will in most cases be sufficient to determine what is the pattern of employment and where it is not, the information could be obtained from the claimant. The employer would be contacted when the information obtained proves to be inadequate, not credible or does not agree with information contained on the record of employment.

It would be expected that numerous scenarios would be present in the establishment of the claimant's pattern of employment at the moment when he or she lost part-time employment. The first scenario could be the regularity of the pattern of the part-time employment. For example, the claimant who works one day every two weeks and earns $180 would have the average weekly earnings of $90 in this case.

In another case it could be an irregular pattern of part-time employment such as the claimant who works on an on-call basis with varying earnings and at irregular intervals. In this case we would take an approach that in a reasonable manner takes into consideration the realities of this part-time employment. In this sense a window of twenty consecutive weeks preceding the moment when the claimant lost the part-time employment constitutes a sufficiently long period to reflect the recent reality of this part-time employment and permit a satisfactory determination of the average weekly earnings.

From that point we will account for the actual earnings from this part-time employment during the window. The sum of these earnings in the window will provide the average weekly earnings from this part-time employment. The actual earnings in a given week could also be the minimum, if not nil, if the claimant had not worked or, as well, could surpass the maximum insurable earnings if he or she had worked full-time.

If the irregular pattern of part-time employment started in a week within the preceding twenty weeks, then obviously the calculation will stop at that week and consequently will cover a period less than twenty weeks. Thus, for example, within the window of twenty consecutive weeks, it is only at the tenth week that the claimant's employment, which was on a regular part-time or a full-time basis, becomes irregular part-time employment. For the purposes of the calculation, we would only consider the weeks from the one where the employment became an irregular part-time employment that is from the tenth week.

The fact that the part-time employment was just a recent pattern of employment when the claimant lost employment, will not change anything in this approach. It is a function of that pattern that from then on the claimant would have normally worked, had it not been for the stoppage of work. It is from that that we will establish the average weekly earnings as a function of this pattern of employment, regular or irregular, even when just recent.

It will not be the case however when this recent pattern of employment would only have been for a short period or was directly related to the imminent stoppage of work. For example, the claimant whose regular pattern of employment of two days a week for $150 was increased to four days a week because of the looming stoppage of work. In that case we would determine the average weekly earnings as a function of the pattern of employment which previously prevailed, without taking into consideration any recent pattern, which, in this context, would result in average weekly earnings of $150.

The approaches developed to this point could equally apply to the claimant who is unable to resume a previous employment. The pattern of work in the future, had there not been a stoppage of work, would probably be the same as the past employment held with this same employer. In this case, average weekly earnings will be determined on the basis of the past pattern of part-time employment, whether it was regular or irregular.

However, if indications are that in the absence of the stoppage of work, the pattern of employment that would have been assumed would have been different than the past pattern of part-time employment the average weekly earnings will be calculated as a function of what would have been the claimant's future pattern of part-time employment, had it not been for the stoppage of work.

8.9.4 Weekly insurable earnings in the rate calculation period

According to the regulation ^{Footnote 8} , the number of days of disentitlement in a week is a ratio between the average weekly earnings from part time employment and the weekly insurable earnings in the rate calculation period ^{Footnote 9} . These latter earnings are those which were used, in accordance with the legislation ^{Footnote 10} , to determine the weekly rate of benefit. This had been chosen here as it better reflects what we wish to measure.

These earnings are obtained by adding the insurable earnings in respect of the claimant's rate calculation period ^{Footnote 11} and dividing the sum obtained by the larger of the divisor that equals the number of weeks during the rate calculation period in which the claimant had insurable earnings and the divisor determined in accordance with the table as outlined in the legislation ^{Footnote 12} .

Where a benefit period is established, the claimant's weekly insurable earnings in the rate calculation period will have to be calculated on the basis of the weekly rate of benefit. In other words, in this context where a claimant has lost or cannot resume a part-time employment, these earnings are immediately available without any other calculations to make.