Digest of Benefit Entitlement Principles Chapter 14 - Section 3
14.3.0 Disentitlement and relief conditions
Generally, 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 recognizes 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 EIR 33 applies to a claimant at the time an initial claim for benefits is made. If the claimant has not had any teaching employment during their qualifying period, EIR 33 cannot be used to determine entitlement to benefits. In these cases, entitlement would be assessed based on the same considerations as any other claimant who worked in an occupation other than teaching. This is true even if the claimant later signs or agrees to a teaching contract, that covers non-teaching periods in their benefit period. Entitlement to benefits for other non-teaching periods, during which the claimant may have a teaching contract, will be assessed based on other sections of the legislation (EIA 11 – week of unemployment; EIA 18 – availability for work).
Once it has been established that a claimant falls under the provisions of EIR 33, what must be examined is whether they meet any of the exempting conditions set out in EIR 33(2). Each of these exemptions is considered separately. Once the claimant has met any one of the conditions, they may, subject to other eligibility criteria, become eligible for EI benefits during their non-teaching period.
A teacher who does not meet any of the exemptions set out in the regulation is not entitled to receive benefits during the non-teaching period, unless they meet the qualifying and entitlement conditions to receive maternity, parental, compassionate care or family caregiver benefits.
Each exemption is discussed in detail in the following sections.
14.3.1 Contract termination
Once it has been determined that EIR 33 applies to a claimant, whether a teaching contract exists, must be considered. A claimant whose contract of employment for teaching has terminated may receive benefits during any non-teaching period, provided all other entitlement conditions are met (EIR 33(2)(a)).
A claimant whose contract of employment for teaching has not terminated cannot receive regular or sickness benefits during any non-teaching period, unless they can qualify to receive benefits with respect to employment in an occupation other than teaching (EIR 33(2)(c)). However, they may be entitled to maternity, parental, compassionate care or family caregiver benefits. In terms of contract termination, each non-teaching period in the claimant’s benefit period must be considered separately.
220.127.116.11 Subsequent contracts
A contract for teaching can be either written or verbal. It is reasonable to conclude that a new contract exists when the employer has made a bona fide offer of employment to teach in the next teaching period (in other words, the employer had a vacant teaching position to be filled during the next teaching period), and the teacher accepted the offer. A simple expectation of a job offer is not considered 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.
Where a teacher verbally accepts an offer of employment, a delay in signing the contract until a later date during the non-teaching period does not negate the fact that a contract for teaching has been concluded. In this case, it is considered that the teacher has a new contract 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 day (CUB 70467; FCA A-511-95, CUB 28420). Unless the contract is terminated, regardless of the terms of the contract, no EI benefits can be paid during any non-teaching period.
18.104.22.168 Continuity of employment
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 months (FCA A-811-00, CUB 49720; FCA A-664-01, CUB 49701). 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, 2 factors must be considered.
The first factor relates to whether, before the end of the current contract, the teacher has entered into a new contract or come to a verbal agreement to return to teaching at the end of the non-teaching period (FCA A-261-05, CUB 63467; FCA A-151-01, CUB 50649). If there is no new contract or verbal agreement to return to teaching, then 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 or verbally agreed to during the non-teaching period, and benefits had been allowed for the non-teaching period, a disentitlement under EIR 33 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, whether it was accepted prior to or after the end of their previous contract, a second factor must be examined.
22.214.171.124 Linkages between contracts
The second factor is to determine whether linkages exist between the contracts. The determination of the existence of linkages between contracts will assist in confirming whether there has been a complete severance of the employer-employee relationship at the end of the first contract. 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 employment (FCA A-151-16; FCA A-510-14; FCA A-101-98, CUB 40255). 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 2 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 previous contract.
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 period (FCA A-367-04, CUB 60821).
Under the terms and conditions of a collective agreement, employee benefits, such as medical and dental benefits, could continue after termination. Some teachers may maintain medical and dental coverage through their union after termination, for which premiums may be paid by either the employee or the union. These benefits, on their own, do not equate to linkages. However, if medical or dental benefits are continued through the employer, then these are considered linkages.
If a contract for the next teaching period was signed, or a verbal agreement was reached before the end of the current contract, and linkages exist between contracts, a disentitlement will be imposed from the start of the non-teaching period because it is considered that the contract in teaching has not terminated. If a new contract is signed or a verbal agreement is reached after the end of a previous contract and linkages exist between the 2 contracts, a disentitlement will be imposed from the date the new contract is signed or the agreement is reached. Both factors, the existence of a contract/verbal agreement and linkages, must be present to support a disentitlement.
Where a teacher is employed under separate contracts with 1 or more school boards, all contracts must terminate before the teacher can be entitled to benefits during any non-teaching period.
A finding that continuity of employment exists, normally results when the employment is 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, 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 must be examined to correctly determine whether there is continuity of employment between one school board/district and another.
The fact that a teacher is not working, does not mean that a contract of employment in teaching has terminated. This may include when a teacher is suspended, on an approved leave of absence with or without pay (CUB 65820), on educational leave, sabbatical leave, sick leave (CUB 73507; FCA A-80-95, CUB26698), maternity leave, or any type of leave, including deferred salary or self-funded leave (FCA A-676-93; CUB 23386). As long as the contract is valid, a teacher is subject to the regulation during any non-teaching period (CUB 68435; FCA A-681-90, CUB 14246A).
14.3.2 Teaching on a casual or substitute basis
Pursuant to EIR 33(2)(b), a teacher may be entitled to benefits if all of their employment in teaching during their qualifying period was on a casual or substitute basis.
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 the purpose of applying the regulation.
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 it (FCA A-103-06, CUB 65192).
For example, a teacher may have a casual or substitute status but during the qualifying period, enter into a contract 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 not all of the employment in the qualifying period was 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. If a teacher has met the condition that all of their teaching employment in their qualifying period was on a casual or substitute basis, 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 of 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 their contract terminates or if they qualify to receive benefits with respect to employment in an occupation other than teaching.
There may be situations where a teacher was employed on a casual or a substitute basis and no contract existed for the school year that just ended, but a contract is signed or agreed to for an upcoming teaching period. That teacher would not be subject to a disentitlement for any non-teaching periods. In this situation, the claimant will have met both of the conditions set out in EIR 33(2)(a) and (b) for the current non-teaching period. The teacher would also be exempt from disentitlement during any other non-teaching period during their benefit period, as once the condition in EIR 33(2)(b) is met, it is considered to be met for the entire benefit period. The claimant could, however, be subject to disentitlement under other sections of the act and regulations.
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 met (EIR 33(2)(a); FCA A-151-01, CUB 50649).
Therefore, when a claimant had teaching employment during their qualifying period 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, until 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 that 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. (EIR 33(2)(b)).
14.3.3 Occupation other than teaching
A claimant engaged in teaching employment, whose contract has not terminated, may nevertheless be entitled to regular or sickness benefits during non-teaching periods if they have, during their qualifying period, worked in an occupation other than teaching (EIR 33(2)(c)).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 considered employment in an occupation other than teaching, as teaching at these levels does not fall within the definition of a teacher pursuant to EIR 33(1).
The qualifying conditions to receive benefits require the claimant to have a sufficient number of hours of insurable employment in their qualifying period, in an occupation other than teaching, that would allow them to establish a benefit period. The claimant must also have an interruption of earnings in their qualifying period, from employment other than teaching.
The amount of weekly EI benefits and the number of weeks that may be payable for a teacher who qualifies with employment in an occupation other than teaching is based on the insurable earnings and hours of insurable employment in the other employment (EIR 33(3)). 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.
[ August 2021 ]
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