Digest of Benefit Entitlement Principles - Chapter 14

14.3.0    DISENTITLEMENT AND RELIEF CONDITIONS

14.3.1     Contract Termination
14.3.2     Teaching on a Casual or Substitute basis
14.3.3     Occupation Other than Teaching
 

14.3.0 DISENTITLEMENT AND RELIEF CONDITIONS

Any person who requests regular or sickness benefits and who was employed in teaching for any part of their qualifying period or who is under a contract of employment for teaching during their benefit period is subject to a disentitlement during any non-teaching period.

However, the Regulations¹ recognize that there are circumstances under which benefits could be payable.  These are:

• the contract of employment for teaching has terminated;
• the claimant’s employment in teaching was on a casual or substitute basis; or
• the claimant qualifies to receive benefits in respect of employment in an occupation other than teaching.

What must be examined is the status of the teacher at the time benefits were requested.

A teacher under contract is not entitled to receive benefits — other than maternity, parental or compassionate care benefits — unless he/she qualifies to receive benefits with respect to employment in an occupation other than teaching.   A teacher whose contract of employment for teaching has not terminated is not entitled to receive benefits even if previous teaching work was done on a casual or substitute basis.   It is not sufficient that previous work was done on a casual or substitute basis if the teacher is under a contract of employment in teaching at the time benefits are requested.

What needs to be considered first is whether there is a contract.  If there is, and the contract has not terminated, a disentitlement is imposed, regardless of the terms of that contract.

Entitlement to benefits for teachers will be discussed in more depth throughout this chapter.

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14.3.1 Contract Termination

A claimant whose contract of employment for teaching has terminated can receive benefits during any non-teaching period¹.

A claimant whose contract of employment for teaching has not terminated cannot receive benefits during any non-teaching period — other than maternity, parental or compassionate care benefits — unless he/she qualifies to receive benefits with respect to employment in an occupation other than teaching².

A contract for teaching can be either written or verbal.  It is reasonable to conclude that there is a new contract if both the employer and the claimant agree that a verbal agreement was concluded.   The contract can be for full-time teaching, for a few days each week or even a few hours each day³.   Unless the contract is terminated — regardless of the terms of the contract — no benefits can be paid during any non-teaching period.

To determine if a contract for teaching has terminated, there must be a genuine break in the teacher’s employment.   This question usually arises during the summer months⁴.

To determine whether there is a genuine break in the continuity of the teacher’s employment during a non-teaching period and therefore conclude that the contract has terminated — as defined by the Regulation — we must consider two factors.

The first factor relates to whether the teacher has a new contract or agreement to return to teaching at the end of the non-teaching period⁵.  If there is no new contract (written or verbal) or agreement to return to teaching, then we must conclude that there is a genuine 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 during the non‑teaching period, and benefits had been allowed for the non-teaching period, a disentitlement under the Regulation would apply as of the date of the signature of the contract or of the verbal agreement.

Where the teacher has a new contract or agreement to return to teaching at the end of the non-teaching period, a second factor must be examined.

The second factor is to determine whether linkages exist between the contracts.   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 employment⁶.  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 two contracts before imposing a disentitlement.

Even if there is a gap between the end date of one contract and the beginning of another, linkages could exist between the contracts.  The linkages could entail such things as seniority and/or pension contributions carried forward from one contract to the next or, sick leave credits retained from one contract to the next or, group insurance premiums paid by the employer over the non-teaching period, or the claimant’s access to group insurance plan coverage over the non-teaching period. 

Under the terms and conditions of a collective agreement, employee benefits, such as medical and dental benefits, could continue after termination.   For some teachers, medical and dental benefits are offered through agreements made through their union and paid by employees or the union after termination.  These benefits — on their own — do not equate to linkages.   However, if medical or dental benefits are continued through the employer, then these equate to linkages.

If it is established that a contract for the next teaching period was signed or agreed to before the end of the actual contract and that linkages exist, a disentitlement will be imposed because the contract in teaching has not terminated.   Both factors must be present to support a disentitlement.

A teacher employed under separate contracts with one or many different school boards, will not be entitled to benefits during any non-teaching period unless all contracts have terminated.

A contract of employment in teaching does not terminate only because a teacher is not working, for example when the teacher is suspended, on an approved leave of absence with or without pay⁷, on educational leave, sabbatical leave, sick leave⁸, maternity leave, or any type of leave, including deferred salary or self-funded leave⁹.  As long as the contract is valid, a teacher is subject to the Regulation during any non-teaching period¹⁰.

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14.3.2  Teaching on a Casual or Substitute basis

For the purposes of the Regulation, 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.

"On a casual basis" refers to teaching for a short period of time and for a limited, intermittent and temporary purpose.  For the purposes of the Regulation¹, casual teaching means irregular, occasional or on-call teaching.  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 our purpose.

"On a substitute basis" means a person who is available on call or used to perform the duties of another teacher, temporarily, during leaves of absence, holidays or illness.  There are no limits placed on the length of time that a teacher can replace another without losing his or her status as a substitute.  The School Board may fill a lengthy vacancy, on a substitute basis, with the same teacher year after year, or with various teachers.

Teachers employed on a substitute basis from one teaching year to the next are relieved from a disentitlement for the non-teaching period if it is established that there was no contract for the school year that just ended, and that there is no new contract for the upcoming school year.

A casual or substitute teacher who signs a contract for teaching —   even for a few days each week or a few hours each day — no longer falls under the category of a “casual or substitute teacher” for the purposes of the exempting condition as set out in EIR 33 (2)b).

That teacher now falls under the provisions stated in EIR 33 (2)a).   Therefore, the guidelines set in Section 14.3.1 of this Chapter apply.  That teacher will be relieved from disentitlement when the contract terminates or if he/she qualifies to receive benefits with respect to employment in an occupation other than teaching. 

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 — and thus disentitled from benefits unless the relieving condition of contract termination is met².

In one case, a claimant was under a two‑year contract to work full time specifically from September to January of each year.  She then taught as a substitute teacher from January to March, and worked on a casual and substitute basis from March to June of the second school year.  The teacher satisfied the provision of the Regulation³ and was entitled to benefits in the non‑teaching period because, not only had the claimant worked on a casual and substitute basis, but more importantly the teacher had fulfilled her obligation under the contract and the contract was not renewed for the following teaching period.  That decision was upheld by the Federal Court of Appeal⁴.

Therefore, when a claimant was both on a casual or substitute basis and had a contract at the end of the school year, a disentitlement is imposed unless 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, which 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; therefore the guidelines in Section 14.3.1 of this Chapter apply⁵.

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1. EIR 33(2) (b);
2. EIR 33(2) (a); Scott J. Bishop (A-151-01, CUB 50649);
3. EIR 33(2) (b);
4. B. Lewis ( A-475-89, CUB 17053 );
5. Renée Dupuis-Johnson (A-511-95, CUB 28420), Louise Grenier (A-512-95, CUB 28419).

14.3.3 Occupation Other than Teaching

A claimant engaged for employment in teaching whose contract has not terminated may nevertheless be entitled to regular or sickness benefits during the non-teaching periods if he or she has, during the qualifying period, worked in an occupation other than teaching¹.

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 employment in an occupation other than teaching as it does not fall within the definition of a teacher as per the Regulation².

The qualifying conditions to receive benefits require the claimant to have, in the qualifying period, a sufficient number of hours of insurable employment for work accomplished in an occupation other than teaching in order to establish a benefit period, and to have an interruption of earnings from that employment.

The rate of the benefits for a teacher who was employed in an occupation other than teaching and who qualifies to receive regular or sickness benefits for the non-teaching period is based on the number of hours of insurable employment in that occupation³.  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. 

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1. EIR 33(2) (c);
2. EIR 33(1);
3. EIR 33(3).