Digest of Benefit Entitlement Principles Chapter 8 - Section 5

8.5.0 Loss of employment, unable to resume an employment

We have already noted that, for the labour dispute provisions to apply, four well-defined elements must be present (Digest 8.1.3). After establishing that a labour dispute exists, which resulted in a stoppage of work, at the claimant’s place of employment, the fourth element comes into play. That is, to determine whether the claimant has lost employment or is unable to resume an employment because of this stoppage of work.

Despite its apparent complexity, this issue is not difficult to address. Everything rests on three basic concepts:

1. loss of employment or unable to resume employment,
2. relationship between this fact and a stoppage of work,
3. the claimant's status in this context.

8.5.1 Loss of employment

From the standpoint of entitlement to benefits, loss of employment basically refers to an interruption of earnings from employment (FCA A-592-99, CUB 45449). This does not mean that an interruption of less than seven consecutive days is not a loss of employment. The terms used and the reasons invoked make little difference, whether in respect of a strike, leaving or failing to show up for work, refusal to cross the picket line, lock-out, or suspension.

In these circumstances, there is no denying that the employer-employee relationship may be affected by the existence of a dispute, especially if it evolves into a stoppage of work. Usually there is not a total breakdown in relations between the parties. In principle, each has an interest in reaching some common ground that may produce an eventual solution to the dispute. Most provincial codes as well as the Canada Labour Code include specific provisions guaranteeing the employee's right, with precedence over any other individual, to return to work when operations start up again.

Few stoppages of work amount to a permanent separation between the parties, in the form of resignation, dismissal or even lay-off, arising prior to or after the start of a stoppage of work, or even once the stoppage of work has ended (Digest 8.5.5, Digest 8.5.6 and Digest 8.13.0).

Loss of employment may also result from "bumping" based on years of seniority, or postponing work to a later date, even where the total time worked according to the collective agreement is eventually honoured (FCA A-1415-84, CUB 9598). The fact that another job has been found immediately does not mean there has been no loss of employment.

The wording of the legislation relating to labour disputes (EI Act 36(1)) requires that the loss of every employment the claimant held at the time of the stoppage of work, be taken into account. This is the case regardless of whether the claimant was working at more than one job at the time their employment was lost, or if employment was continued in other jobs afterwards. This also includes employment that a claimant expected to start with a new employer at a definite date, but could not start because of a stoppage of work attributable to a labour dispute. The wording applies to all previous employment that the claimant was unable to resume, for the same reason (Digest 8.5.2).

The employment at issue must nonetheless meet the definition found in the legislation (EI Act 2(1)), which effectively eliminates self-employment, as there is no employer-employee relationship. As long as this employment falls within the definition, it may also include any employment worked in Canada or overseas, as well as employment that does not meet the minimum conditions regarding insurability.

8.5.2 Unable to resume an employment

Because the specific phrase "a claimant . . . unable to resume an employment, because of a work stoppage attributable to a labour dispute" appears in the legislation (EI Act 36(1)), this claimant is subject to the provisions concerning labour disputes.

Accordingly a claimant, on leave when the stoppage occurred, who could not, after a period of vacation, illness, injury or maternity, resume their employment because the stoppage of work continued, would be connected to the loss of employment attributable to the stoppage of work. The disentitlement, should it apply, would be effective the date the claimant was to have returned to work (CUB 21571and CUB 20347).

The connection may be more difficult to find in cases where a claimant is not able to resume employment after a leave of absence for union business (FCA A-661-83, CUB 8639). Similar issues may arise between casual workers who are subject to recall, and seasonal workers. (FCA A-787-81, CUB 6801; FCA -1036-92, CUB 21236; and FCA A-549-81, CUB 6827). These claimants do not literally lose “employment” at the beginning of the active season but, rather, the “possibility of employment”.

In order to eliminate all the ambiguity as to whether the provisions concerning labour disputes applied in a claimant's situation, it was necessary to add a specific reference to "a claimant . . . who is unable to resume an employment" in the legislation (EI Act 36(1)). This establishes an equitable treatment of a claimant who has lost employment and a claimant who is unable to resume employment, when both are for the same reasons.

With respect to situations where the leave is of a longer duration, for example, for union business or working at another job, it is more appropriate to consider the question whether the claimant is unable to resume an employment. This approach should also be used where a claimant is unable to resume an employment on return or recall to work after a lay-off or at the end of a contract. The same could be said for the casual or seasonal worker whose return to work is prevented by the fact that there is a stoppage of work attributable to a labour dispute (Digest 8.5.8).

This does not mean that all persons who have a possibility of being recalled by the employer during a stoppage of work automatically fall under the category of "claimants who are unable to resume an employment". At the outset it must be reasonably concluded that, had it not been for the stoppage of work, the employer would have taken these workers back at a given date or time, and consequently, in the absence of the stoppage of work, these workers would have been at their jobs. However, an unconfirmed possibility or non-assurance of working, or the sole existence of a right of recall, is not sufficient to arrive at such a conclusion.

The employment to which we refer must be an employment that the claimant held in the past, regardless of whether it is in the recent or distant past. It is not limited in any way to the employment that the claimant held immediately prior to their last employment or prior to the filing of their claim for benefits. This expression may even refer to an employment at which, for one reason or another, the claimant has stopped working during the benefit period, and did not later resume because of a stoppage of work due to a labour dispute.

It must however be in respect of the same employer for whom the claimant has already held employment, but not necessarily in the same occupation or even the same place of employment. The fact that a claimant could not, because of the stoppage of work, commence a job at a date provided by an employer, for whom they have never worked, does not fall within this category. What would be more at issue there, is whether the loss of employment would be subject to the labour dispute provisions.

Finally, it must be emphasized that "a claimant who . . . is unable to resume an employment" also includes those persons who are prevented from resuming their employment because of a stoppage of work, as well as those who decide, voluntarily, not to resume their employment.

8.5.3 Loss of or unable to resume employment because of a stoppage of work

Many events in everyday life are linked by what is called the "domino effect", a kind of chain reaction by which one-event causes a second, which creates a third. The labour dispute clause has a similar effect with respect to three events: labour dispute, stoppage of work and loss of employment or being unable to resume an employment (Digest 8.1.3).

The term “work stoppage” does not refer to the employees’ labour, but rather to the employer’s operations (CUB 16553). A work stoppage means “a stoppage of the normal activity of the employer’s business”. The stoppage of work may be caused by a strike or lockout, which may be legal or illegal. The Commission has the burden to show that there was a work stoppage. A permanent closure of the business is not a work stoppage attributable to a labour dispute.

Loss of employment or being unable to resume an employment, and a stoppage of work do not necessarily take place at the same time. Following the reasoning inherent in the labour dispute clause, this loss or inability to resume employment within the meaning of that clause must occur following the commencement of the stoppage of work, or must at the very least coincide with it. The issue then is whether this loss or inability follows an event associated with the dispute and the stoppage of work (CUB 39840 and CUB 21211) or whether it would not have occurred at that specific time, had there not been a stoppage of work (CUB 76451 and CUB 56343). In either case, it is reasonable to conclude that a cause-and-effect relationship between these events indeed exists. Whether the relationship is direct or indirect is not relevant.

While the situation is far less clear when loss of employment or being unable to resume an employment precedes the stoppage of work, an effect cannot precede its cause. Consequently, a claimant who lost employment or was unable to resume it prior to a stoppage of work is not covered by the labour dispute provisions (EI Act 27, EI Act 28, EI Act 29; Digest 8.5.5 and Digest 8.5.6). Whether or not the loss of employment or being unable to resume it can be blamed on an imminent stoppage of work is not relevant.

Employees are often on leave at the time of a stoppage of work. Relations with the employer are not definitively broken in such circumstances, even if the leave is unpaid. A person who is unable to return to work once the leave ends is considered to have lost an employment, or is unable to resume an employment because of a stoppage of work, if the stoppage is still in progress (Digest 8.5.2 and Digest 8.5.7).

Sometimes an employee's status at the time of the stoppage of work can be difficult to determine. The case of a full or part-time employee, working on a temporary, permanent or probationary basis, generally poses no real problem. There is a clear link between the loss of employment or being unable to resume an employment, and the stoppage of work for the period the employee would have remained at work, had such stoppage of work not taken place.

The situation of a casual worker is much less clear. This situation must be determined in terms of the job history and the likelihood of continuing at the job had there been no stoppage of work (Digest 8.5.12).

For an employee who is reinstated in the job following a grievance, the fact that the employee's status at the time of the stoppage of work was not known until several months following the stoppage is not relevant. Consequently, the ruling on loss of employment must be reconsidered in light of the new status, even if the claimant is not aware of this fact until after the stoppage of work (CUB 16582).

An employee whose job was scheduled to come to an end after the commencement of the stoppage of work for reasons unrelated to the dispute may be in a similar situation as an employee who has received final notice of dismissal effective after the beginning of the stoppage of work. The relationship between the initial loss of employment and the stoppage of work remains unchanged (FCA A-181-83, CUB 7842A; FCA A-270-91, CUB 19037) until such time as the employer-employee relationship is permanently severed (FCA A-942-85, CUB 11403 and FCA A-1036-92, CUB 21236; Digest 8.13.0).

8.5.4 Multiple disputes or stoppages

Several factors may complicate a labour dispute, including the number of parties actually involved. This often happens when a dispute involves an employer or an association of employers and several locals of the same union or even several unions. The first issue is to determine whether one or several disputes are underway at the claimant's place of employment.

Generally, there are as many labour disputes as there are collective agreements under negotiation. There is a single dispute when the major issues relate to a master collective agreement, when negotiations deal with the industry as a whole or when various groups of workers form a common front, creating for example a joint committee or even making the signing of each collective agreement an essential condition for the settlement of every dispute (FCA A-512-88, CUB 12992A; FCA A-814-91, CUB 20138). Where there is more than one dispute at the claimant's place of employment, the impact of each stoppage of work on the loss of employment or being unable to resume an employment in question must be identified.

When several unions are locked out by an employer, the resulting stoppage of work may be attributable to all of the disputes, and not simply to a single dispute (CUB 67605, CUB 39832A, and CUB 25474). The fact that one union is responsible for the event that brought about the lockout, or that this event occurred at another place of work, is of little importance.

The situation can be illustrated where blue and white-collar workers are negotiating with the same employer for the renewal of their respective collective agreements. To back up their demands, the blue-collar workers go on strike, and this results in some of the white-collar workers being laid off. It is necessary at this stage to decide if there is one complex dispute, in which both white and blue-collar workers are involved, or two distinct labour disputes. The question is important, specifically because the exempting conditions apply only with respect to the dispute which resulted in the work stoppage, and led to some white-collar workers being laid off.

In this situation, there are clearly two labour disputes involved. If the employer locked out the white-collar workers a few weeks after the blue-collar workers launched their own strike, the lay-offs of the white-collar workers prior to the lockout are considered to have been caused by the blue-collar strike, and therefore fall under the labour dispute provisions (EI Act 36(1)). The white-collar workers in this case lost, or may have been unable to resume their employment due to a stoppage of work attributable to a labour dispute of blue-collar workers. However, if it can be shown that they were not concerned with that labour dispute those white-collar workers would likely not have any difficulty meeting the exempting conditions (EI Act 36(4)).

The situation would be different if the employer, equally in dispute with the white-collar workers, decides to lock them out. From that point on, it would be considered that the white-collar workers, who had earlier been laid off, could not resume their employment due to a stoppage of work attributable to two labour disputes in progress. In this context it becomes more difficult for these white-collar workers to prove that they continue to meet the exempting conditions, as they have become parties to the labour dispute.

8.5.5 Lay-off prior to stoppage of work

The fact that a dispute is underway and a stoppage of work is imminent, when the lay-off of one or several employees takes place, may be due simply to chance and be unrelated to the lay-off. It may be the same when an employer cancels the fixed recall of a number of employees. These cases are not subject to the labour dispute provisions.

The same cannot be said when the lay-off or the cancellation of a recall is attributable to the existence of a labour dispute and to signs of an impending stoppage of work. This relationship may be the result of outside factors, such as a breach of the contract or postponement of orders by customers who fear that, given the circumstances, these will not be completed within deadlines, or who support a boycott organized by the union. Or it may be the result of internal considerations, in reaction to initiatives taken by workers, such as a work slowdown, or in anticipation of operational problems following an intentional damage of equipment. It is not unusual in these situations for employees to be suspended or dismissed because of their involvement in such incidents, even prior to the stoppage of work occurring (Digest 7.3.0).

Although the wording of the labour dispute provisions (EI Act 36(1)) refers specifically to loss of employment or being unable to resume it as a result of a stoppage of work, the interpretation historically followed has been that these provisions may apply in anticipation of a stoppage of work. It is enough to show a cause-and-effect relationship between either of these events and the stoppage of work, even if this is only impending.

The numbers of days between the lay-off or cancellation of a recall, and the stoppage of work, as well as the fact that a strike mandate has been given to the union executive, may be signs of an anticipated work stoppage. The eventuality of such a stoppage of work in the short term may well prompt an employer to lay-off or to cancel the recall or return to work of some or all of their employees. The shorter the interval between the lay-off or cancellation of recall and the stoppage of work, the more likely it is that these events are linked to the stoppage of work. It is imperative that the stoppage of work actually take place in order for a claimant to be disentitled from benefits. If a disentitlement applies, it cannot take effect until the first day of the stoppage of work. When the lay-off or cancellation of the recall has two originating causes, the issue is whether or not the imminence of the stoppage of work is the principal one.

This approach is clearly supported by the strict wording of the labour dispute clause (FCA A-0595-00, CUB 45670A; CUB 76451 and CUB 56343). Consistent application of the labour dispute provisions avoids a double standard, depending on whether a worker lost employment or is unable to resume it immediately before or after a stoppage of work.

Jurisprudence has held that the timing of events is important; an actual stoppage of work is essential and must precede or coincide with the loss of employment referred to by the labour dispute provisions (CUB 9830A). This may be significant where the lay-off occurs for a reason related to an employee’s specific situation. In this context, the claimant who is permanently laid off, as an isolated incident prior to the stoppage of work, with no chance of recall, will not be considered to have lost employment because of the stoppage of work. The fact that the loss of employment was caused by the impending stoppage of work has no effect on entitlement to benefits in these circumstances. The same principle may be applied in the case of the claimant whose return to work with an employer on a fixed date was permanently cancelled, with no hope of returning, due to the imminent stoppage of work.

Precedence is generally given to the interpretation applied in most judgments, especially in cases where there are mass lay-offs or cancellations of recalls before a stoppage of work. Usually these employees are involved or implicated in the labour dispute. The application of the labour dispute provisions cannot automatically be ignored, simply because the loss of employment or being unable to resume it precedes the stoppage of work. The finality of the lay-offs or cancellation of recall, as well as each individual’s situation, must be carefully considered.

Where an employee is suspended prior to the stoppage of work for activities connected with the dispute, or for other reasons, this loss of employment cannot be considered definitive. The provisions of the labour dispute clause would apply, but only from the end of the suspension period. This is because it is at that moment that the loss of employment is considered to be a result of the stoppage of work caused by the dispute.

There is general agreement that based on what has been said above, it is inappropriate to apply the labour dispute provisions to a permanent dismissal that occurred before the stoppage of work. This is not the case when, after settlement of a grievance, an employee is reinstated and all rights are recognized retroactively. The labour dispute provisions apply in this case from the beginning of the stoppage of work in the same way as they do to all employees, even if the claimant's status as an employee was actually only defined several months later (CUB 16582).

8.5.6 Voluntarily leaving prior to stoppage

Voluntarily leaving a job is not the same as a lay-off, as it is the claimant who takes the initiative to break the links with the employer; the break is not dictated or imposed by the employer. The same may be said when a person decides not to go back to work at a given date.

A claimant's voluntary decision to quit employment or not to resume employment while a labour dispute is underway, or when a stoppage of work seems imminent, may be motivated by the stoppage of work or by totally independent reasons. In the latter case the labour dispute provisions should not be considered in ruling on these reasons.

The threat of a potentially lengthy labour dispute may lead a claimant to make certain decisions with respect to their future, based on an evaluation of the situation, personal criteria, and the claimant's position within the firm. For example, a claimant may voluntarily resign or not resume an employment prior to the stoppage of work because they believe that the strike will last a long time, they do not support the union demands, or they wish to return to studies.

Whether the decision to voluntarily leave employment was made in anticipation of a stoppage of work, or for other reasons, one thing is for certain: after this definitive resignation, the claimant is no longer an employee of the firm. It cannot later be said that employment was lost or not resumed because of a stoppage of work attributed to a labour dispute. This is because the employment has already been deliberately lost or not resumed, even if it was in anticipation of a stoppage of work (FCA A-1082-84). The labour dispute provisions would not apply.

Although if may appear that this approach is inconsistent with the provisions of the legislation, the fact that benefits will not be denied based on these provisions does not necessarily mean that benefits will in fact be paid to a claimant in this situation. Other provisions of the legislation must be applied in making the final determination regarding entitlement to benefits, including, but not limited to whether just cause exists for voluntarily leaving employment, or whether all qualifying and entitlement conditions are met.

A distinction must be made between loss of employment resulting from a genuine resignation and one that could be considered a fabricated departure. The former is a case of a genuine individual resignation which amounts to a complete and permanent break in the employer-employee relationship. There is no risk that benefits the claimant might receive would influence the claimant's behaviour in the dispute. By totally changing their status, these individuals can never become strikers. They may thus avoid the provisions relating to labour disputes, however, whether they will actually receive benefits would be considered under the provisions of voluntary quitting or refusal to resume work (EI Act 29(1)).

In the case of a fabricated departure, the resignation may be reversible because the employer-employee relationship is not totally broken; either the employee has not yet taken that final step, or the break is only superficial in that the employee is involved in picketing or other union activities. The same is true for mass resignations, which are usually only one of several pressure tactics used against the employer to force the granting of demands. The employees' interests remain linked to the future of the business.

EI benefits should in no way be used to assist employees who are on strike or who have an interest in the dispute. In this context, the traditional approach continues to be justified in that the claimant has clearly left employment because of an impending stoppage of work without, however, breaking all links with the employer. It is the same when the claimant, voluntarily, and for these same reasons, does not resume a previous employment, without definitively breaking all links with the employer. Disentitlement to benefits takes effect from the first day of the stoppage of work, provided of course that such a stoppage actually begins.

Loss of employment that occurs between a claimant's fabricated resignation (one that is actually linked to a labour dispute), and the start of a stoppage of work which may never occur, could be considered under the provisions of disqualification under section 27(1)(a), (b) of the act. A worker who voluntarily fails to report for work on a day to day basis because of a dispute and impending stoppage of work would have difficulty proving they are unable to find suitable employment. Because employment is available with the employer and this worker chose not to take it, the issue to consider is the individual’s availability for work. A disentitlement pursuant to section 18(a) of the act would likely be justified for as long as the employee fails to show up for work, until the stoppage of work occurs (EI Act 36). This principle also applies to the claimant, who voluntarily does not resume an employment for the same reasons, without definitively breaking all links with the employer.

The labour dispute provisions will not apply to those who can show that they have truly resigned their employment by completely separating from the employer, before the start of the stoppage of work. In the case of a fabricated or non-permanent separation, the claimant will be disentitled because of a failure to prove availability during the period from the date they leave employment, until the start of the stoppage of work.

8.5.7 On leave at time of stoppage of work

The labour dispute provisions generally do not apply to an employee who is on leave when the stoppage of work occurs, until such time as the employee would normally have returned to work, had there been no stoppage of work. A cause-and-effect relationship between the loss of employment or being unable to resume it, and the stoppage of work, only exists as of the date the employee was to resume employment. A disentitlement under the labour dispute provisions would apply as of that date. This would not be the case where the employee had previously been laid off during a period of leave, for a reason unrelated to the dispute. This approach will be applied equally in the case of leave for illness, injury or quarantine, pregnancy, caring for a newborn or a child placed for the purposes of adoption, or caring for a critically ill child or other family member.

There may be other forms of leave such as, leave for union business, from which a claimant fails to return to work once the reason for the leave ends. These individuals are considered as unable to resume an employment, and therefore, they would be subject to the labour dispute provisions (EI Act 36(1)). A prolonged leave for the purposes of being engaged in other employment could also fall within this category, unless the claimant clearly meets the condition in section 36(1)b) of the act.

Frequently, a claimant continues to receive payment from their employer, which totally or partially compensates for loss of earnings during a period of approved leave. This is especially true for vacation or sick leave, for which the claimant may receive full pay for some or all of the period of leave. Remuneration may also be in the form of special payments to supplement training allowances received from other sources.

Where a stoppage of work is attributable to a labour dispute, an employer may stop paying employees on leave. This break in earnings constitutes a form of loss of employment caused by a stoppage of work attributable to a dispute. In such a case, the labour dispute provisions should be considered from the time the payments stop, even if the original period of leave has not ended. All facts must be carefully reviewed to determine if a claimant meets the conditions to be exempted from a disentitlement.

8.5.8 Recall to work

Whether employees are laid off from regular, seasonal or casual employment, it is very common that they may be recalled by their employer. In some cases, the period or date of recall is more or less determined each year, while for others, recall depends on the employer’s requirements at a given time.

In such circumstances, entitlement to benefits must be carefully considered when, at the pre-set or anticipated recall date, a stoppage of work caused by a labour dispute prevents reinstatement. A determination must be made as to whether these individuals are unable to resume a previous employment and, if so, whether the labour dispute provisions apply to their cases.

Before the specific reference to a claimant "unable to resume an employment" (EI Act 36(1)) was added in the legislation, most of these cases were considered under loss of employment. Prior to this change, cases involving seasonal workers whose jobs end each year at the end of the active season (FCA A-209-89, CUB 16202; FCA A-1036-92, CUB 21236), of casual employees whose patterns of employment may vary greatly, or an unemployed person who may or may not be recalled, the adjudication of these cases was much more difficult (FCA A-801-82, CUB 7464; and FCA A-594-91, CUB 19771).

The amendments that were made clarified this situation, and now the entitlement to benefits is considered under the provisions of a claimant "unable to resume an employment", which more correctly corresponds to the real situation of these claimants.

In this context, it is not enough that the worker, unemployed at the time of the stoppage of work, has only an undefined possibility of working during this stoppage; a moral guarantee, or a simple right to recall may be sufficient in some cases, but not in others (FCA A-044-90, CUB 17664). In fact, to be considered as a claimant "unable to resume an employment" because of a stoppage of work, the evidence must reasonably conclude that the employee would have been recalled and consequently have had employment, had there been no stoppage of work.

Examples of this include: issuance of a recall notice by the employer or posting of a work schedule requiring the employee's services at a specific date; the fact that the previous termination of employment was only temporary for a pre-set period, and that the employee was to return to work at a specific date (FCA A-209-89, CUB 16202) or, finally, that the scale and regularity of employment reasonably indicate that the claimant would have worked during a stoppage of work (CUB 48815). By not following up on such an offer of or opportunity for employment, the employee is clearly unable to resume a previous employment (FCA A-595-00, CUB 45670A). Such situations require that the labour dispute provisions be applied.

The same reasoning applies when a claimant who has been laid off by an employer has reached agreement about reinstatement or an eventual return on a specific date or set period, but could not return on the specified date because of a stoppage of work attributable to a labour dispute (FCA A-595-00, CUB 45670A).

In the same way, the seasonal worker should not be considered “unable to resume an employment" before it can be reasonably concluded that the employer would have reopened at the beginning of the active season, had there not been a stoppage of work (FCA A-787-81, CUB 6801 and FCA A-1036-92, CUB 21236).

The cause-and-effect relationship between being unable to resume employment and the stoppage of work exists as of the date when the employer would have recalled the employee, had there not been this stoppage, provided the stoppage was continuing at that time. Until this time, there can be no disentitlement pursuant to the labour dispute provisions.

The same approach cannot be taken in the specific case of an individual who is recalled to work by an employer simply because the employer requires additional services due to the stoppage of work itself, without which there would have been no recall (Digest 8.5.13). Although the labour dispute provisions would not apply in this scenario, entitlement to benefits would be considered under other provisions of the act and regulations.

8.5.9 Probationary employees

Probation is nothing more than a first step to permanent employment. Its purpose is to evaluate the employee's skills in terms of a firm's present and future needs. Probationary employment is comparable to any other ordinary job (CUB 56673 and CUB 51828). Probationary employment interrupted by a stoppage of work is unquestionably loss of employment attributable to that stoppage (CUB 20493).

8.5.10 Part-time employees

The labour dispute provisions do not make any distinctions between the kind of employment that is subject to the regulations (CUB 65854 and CUB 32940). As long as there is employment that a claimant has lost or is unable to resume because of a stoppage of work due to a labour dispute, the fact that this employment is full or part-time, or on a regular or temporary basis, is of no significance.

It is more important to distinguish whether a part-time job has been performed continuously and according to a pre-set pattern, or whether it has been performed only on an irregular basis. While loss of continuing part-time employment constitutes loss of employment (CUB 69780 and CUB 13040), this may not be the case if the part-time job is very irregular. In that case, it must be determined whether the employee was assured of being recalled and would have had employment, had there been no stoppage of work due to the labour dispute (CUB 65854 and CUB 32940; Digest 8.5.8 and Digest 8.5.12).

Where applicable, a disentitlement will only be imposed from the date when the claimant would have returned to work, had there been no stoppage of work, in cases where the stoppage continues. It should be noted that from that time, the number of days of disentitlement in a week is to be calculated in proportion to the part-time employment that the claimant has lost or is unable to resume because of a stoppage of work attributable to a labour dispute (EI Act 36(2); EI Regulation 53; Digest 8.1.6 and Digest 8.9.0 to 8.9.4).

8.5.11 Temporary employees

Termination of employment, whether the employment is permanent or temporary, is still loss of employment subject to the labour dispute provisions, if it is attributable to a stoppage of work caused by a labour dispute at the claimant's place of employment (CUB 65854 and CUB 32940). The same principle applies when a claimant is unable to resume a permanent or temporary employment for the same reasons (EI Act 36).

The following are not relevant in determining whether loss of employment is attributable to a stoppage of work:

• the fact that the job has just started; is short-term or about to end;
• that the claimant was hired to replace workers on leave or was discharged on the eve of the stoppage of work;
• that this employment had been accepted during the off-season of a usual occupation;
• that the employment was obtained through a union travel card;
• that the claimant was a regular employee of another firm; or,
• that the claimant was a student whose job was only to last until the return to school.

Similarly, whether an employee has already been employed for longer than initially expected is irrelevant if the employment ceases because of a stoppage of work. An employee assigned to a factory where a stoppage of work occurs two days later has still lost employment because of a stoppage of work. The issue is whether the employee was at that job at the time of the stoppage of work, and not how long they were to stay there or whether they should have been elsewhere.

It is important to clearly establish the reason for any loss of employment during a stoppage of work, especially in the case of an employee hired on a temporary basis. Even if the loss of employment occurs during a stoppage of work, that may be simply coincidence. Whether or not there was a stoppage of work, this temporary employee would have been laid off for a reason independent of the stoppage of work, for example where a predetermined period of employment has come to an end, in which case the labour dispute provisions are not applicable. The fact that some of the worker’s colleagues may have lost or will eventually lose employment due to the stoppage of work, or that the claimant is actually financing the dispute through union dues paid while employed, is not significant

Where a person was hired or recalled specifically because of the stoppage of work, the labour dispute provisions will not apply if this person loses or is unable to resume their employment because of the stoppage of work due to the labour dispute (Digest 8.5.13).

8.5.12 Casual employees

There are several different types of casual work situations that may have different impacts on a labour dispute. What must first be determined is the type of situation in which the casual employees find themselves. There is the casual employee who only works from time to time, to replace or assist during specific periods, or those who are hired for a set schedule on a temporary basis. There are also those on an on call list who have no set schedule or expectation as to when they will receive their next call in.

Once the status of the casual employee is clarified, the impact of a potential labour dispute on the employee can be determined. The Commission looks for a distinction between two situations: the person who would undoubtedly have worked at some point during the stoppage of work, had there been no stoppage; and the person who had only a vague possibility of being called during that period (Digest 8.5.8). The labour dispute provisions will only affect the casual employee who would have reasonably expected to work during the labour dispute.

8.5.13 Employees hired or recalled by reason of stoppage of work

An impending stoppage of work will not necessarily stop an employer from hiring staff. On the contrary, besides new employees hired to compensate for regular staff turnover, the employer may sometimes increase the work force to increase production, build up inventories, or complete major contracts ahead of schedule. The employer may also attempt to recall some employees who would not have been recalled in other circumstances, in order to mitigate the anticipated or real impact of an eventual stoppage of work.

If the stoppage of work does take place, the fact that a claimant has lost an employment or is unable to resume an employment will affect both the employee hired or recalled because of the stoppage of work, and the employee hired or recalled to meet the ongoing needs of the business. The only difference generally being that the latter will be subject to the labour dispute provisions of the act (CUB 10481 and CUB 15967), while the other will not.

In reality, it is not always easy to distinguish between one employee and the other, both of whom were temporarily hired or recalled shortly before the stoppage of work occurred. The reason for hiring or recall must be established, to determine if it is a case of a job having been created because of the impending stoppage of work?

Some employers readily admit that one or more workers were hired or recalled in direct connection with an anticipated stoppage of work. Others may indicate that the employee was hired or recalled permanently. In the latter case, to help clarify the true reason the employer may be asked why the employee was laid off once work resumed following settlement of the dispute.

The passage of time may help to show whether the employee was hired or recalled to perform regular work as a replacement for an individual on sick or maternity leave, for example, or whether it was to perform work that regular employees were refusing to do during a period of dispute. The employee may in fact have obtained a job, not lost it, because of an impending stoppage of work.

In most provinces, labour legislation does not prohibit "strike breakers" replacing employees involved in a stoppage of work. The hiring or recall of workers as "strike breakers" during a stoppage of work is clearly linked to it; the fact that they have lost employment or are unable to resume an employment, whichever is the case, does not render them subject to the labour dispute provisions. Each case must be considered based on its own set of facts.

Even if it is known to the general public that a strike may take place, this does not necessarily mean that every hiring is linked to this fact. Even if the claimant might initially have shown a valid reason for refusing work offered in such a situation, this does not exclude the application of the labour dispute provisions if the claimant eventually accepts genuine employment not related to an impending stoppage of work, and then subsequently loses or is unable to resume that employment because of this stoppage of work.

It must be kept in mind that employment is not considered suitable if it arises as a consequence of a stoppage of work attributable to a labour dispute (EI Act 6(4)(a)); and Digest 9.4.4).

[April 2019]