Digest of Benefit Entitlement Principles Chapter 6 - Section 6
6.6.0 Periods of leave
6.6.1 Leave of absence
Taking a leave of absence without pay is considered to be voluntary leaving. If it is established that the voluntary leaving is without just cause, the claimant is not entitled to benefits for the entire period of employment lost rather than being indefinitely disqualified. For claimants on a leave of absence, the disentitlement for the period of employment lost may be terminated earlier if the claimant accumulates, with another employer, the number of hours of insurable employment required to qualify for benefits.
6.6.2 Authorized period of leave - section 32
Claimants who are not working because they requested and were granted a leave of absence are considered unemployed, although on a temporary basis. Because the employee's actions triggered this period of unemployment, the reasons for requesting the leave of absence are subject to the same considerations as voluntarily severing the employment entirely. Because the leave of absence is a temporary situation, though, a finding of "no just cause" results in a disentitlement rather than a disqualification. The disentitlement applies to each day of the leave.
The leave may be for a few days or interspersed with employment. The claimant will be disentitled for any days that constitute a leave of absence.
The leave that the person took voluntarily with the employer's permission may be with or without pay. The terms of the leave must require that the person return to work on a date agreed to by the claimant and the employer, although the agreement need not be made before the leave begins.
Just because the employer authorizes the leave, it does not mean that the claimant had just cause within the meaning of the EI Act. It is up to the Commission to determine, based on the information gathered, whether the leave was the only reasonable alternative having regard to all the circumstances. The current adjudication principles concerning a finding of just cause continue to apply to these cases.
If imposed by the employer or set out in the employee's contract that the claimant must take leave (without pay or with reduced pay), then this is considered to be a lay-off. Even if the claimant was able to choose the period in which such imposed leave could be taken, this would not change the fact that the leave was not taken voluntarily. In such circumstances, a disentitlement will not be imposed.
If the person asks the employer to reduce the employment from full-time to part-time and the employer agrees, then the employer has agreed to the claimant taking leave and thus the days of employment lost are considered as leaves of absence. In such situations however, officers must also consider other issues such as "interruption of earnings" and "availability".
When it is shown that a person has voluntarily taken a period of leave without just cause, a disentitlement will be imposed and the person will not be entitled to receive benefits until they meet one of three relief measures outlined in Section 32(2) of the EI Act.
a) Resumes the employment
Whether or not the person returns to work is not an issue with respect to the termination of the disentitlement. It will suffice that the period of leave is over. However, if the claimant did not recommence employment, the adjudicator must consider the issue of voluntary leaving and just cause pursuant to Section 29 and 30 of the Act.
b) Loses or voluntarily leaves the employment
Unlike indefinite disqualifications, to lose employment in these situations does not necessarily mean that the person was dismissed. The condition to terminate the disentitlement will be met if the person is fired or quits the employment. Of course, should the person quit without just cause or be fired for misconduct, these issues must be addressed.
Moreover, in situations of lay-offs where there is a complete and final severance of the employer/employee relationship that leaves a claimant with no possibility to resume work, a period of leave ends on the same day the employment ends. In such cases, the anticipated period of leave becomes no longer effective and consequently the disentitlement should be terminated on the last day of the final period of leave.
c) After the beginning of the period of leave, accumulates with another employer the number of hours of insurable employment required by Section 7 or 7.1 to qualify to receive benefits
Unlike indefinite disqualifications, the claimant is only required to meet the requalifying conditions; a new claim need not be established. If the claim is a renewal, the disentitlement is terminated at the point the VER is met. If it is an initial claim, and the VER has been met, the disentitlement is not imposed.
If the conditions for ending the disentitlement have not been met when the claim ends the disentitlement will be carried over to the next benefit period.
If the claimant decides to voluntarily quit the employment while on leave of absence, the disentitlement will be terminated on the date prior to the date the claimant decided to voluntarily leave. The officer must then adjudicate the reason for voluntarily leaving and impose an indefinite disqualification if applicable.
Adjudicators will impose the disentitlement for each day of leave. However, if the end date of the continuous period of leave is for a future date, the officer will impose an indefinite disentitlement for control purposes, as the claimant must meet specific conditions before the disentitlement can be terminated.
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