Digest of Benefit Entitlement Principles - Chapter 14
CHAPTER 14
TEACHERS
14.6.0 INTERRUPTION AND ALLOCATION OF EARNINGS
Teachers have an interruption of earnings and a separation from employment at the beginning of the non-teaching period provided it is at least 7 days1.
There is an interruption of earnings when a teacher completely ceases to work while on approved leave of absence without pay, but still remains under contract with the employer. It is the wording of the agreement for the leave of absence binding the parties that will govern the situation.
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14.6.1 Allocation of earnings during Non-Teaching Period
Our longstanding position based on the Supreme Court in Dick1 has always been that teachers are not paid for periods of leave. As a result, the Commission did not allocate earnings during the non-teaching days.
However, in Bruneau2, the Federal Court ruled that the allocation of a teacher’s salary must be done in accordance with Regulation 58(4) (now EIR 36(5)) when the contract specified that a teacher is being paid for days other than "teaching days", such as statutory holidays, non-working and vacation days, during the period of employment. In the Bruneau case it was considered that the entire teaching period was being remunerated thus allowing for Regulation 58(4), now EIR 36(5), to be operable.
This means that earnings of a teacher can be allocated, not only to teaching days, but also to any other non-teaching days as specified in the contract. A strict application of the Bruneau decision would have prevented the Commission from paying maternity, parental, and compassionate care benefits to teachers in similar situations during the non-teaching periods. To respect the intent of the legislation and to strike a balance between Dick and Bruneau, no earnings are to be allocated during the summer non‑teaching period and regular, maternity/parental and compassionate care benefits can be paid during that period regardless of whether the claimant accumulates insurable hours and/or earnings under their teaching contract for the non-teaching period.
If it is stipulated in the teaching contract, that a teacher is paid for statutory holidays and or any other day in addition to "teaching days", our policy is that the earnings be allocated, in the manner described hereafter, to all teaching and non-teaching days that fall in the teaching period (generally September to June) including the non-teaching periods such as the Christmas and spring break. This means that generally, no earnings will be allocated in the summer non-teaching period (generally speaking July and August).
If the contract specifies that the whole of the period of teaching is remunerated, as was in the case of Bruneau, allocation will be done proportionately over the entire teaching period under EI Regulation EIR 36(5).
If, however, the contract specifies that only certain of the non-teaching days are remunerated (example only statutory holidays) monies paid for these non-teaching days will be allocated under the appropriate subsection of EI Regulation 36, that is, stat. holidays would be allocated under EIR 36(13) and vacation pay under EIR 36(8). Again, no monies would be allocated outside the teaching period.
For example: If a teacher files a claim during the Christmas break and the contract specifies that the teacher is paid for the statutory holidays as well as vacation days when the school is closed, thereby providing remuneration for the entire teaching period, the allocation of the total remuneration is made under EI Regulation EIR 36(5).
If a contract is specific in that a teacher is paid for only statutory holidays, and the teacher is filing a claim during the Christmas break, it means that statutory holiday pay is allocated to Christmas day, Boxing day and New Years day pursuant to Regulation 36(13) as not all the teaching period is remunerated.
As no earnings are allocated outside the period of teaching, (generally speaking July and August) teachers have no earnings allocated to the summer period and there is an interruption of earnings. This policy maintains the current approach to the payment of maternity, parental and compassionate care benefits for teachers during the non-teaching period.
It is important to note that Regulation 33 must continue to be applied to all traditional non-teaching periods to determine the entitlement to benefit of a teacher.
The intent is to pay maternity/parental and compassionate care benefits during the non-teaching period. Therefore, our policy is to pay maternity/parental and compassionate care benefits during the summer non-teaching period even if the client is accumulating insurable hours during that period of time.
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- Dick (S.C.C. 15540, A-267-77);
- Danielle Bruneau (A-113-98).
14.6.2 Insurable hours during Non-Teaching Period
A teacher who is paid for days other than "teaching days" as mentioned in 14.6.1 may accumulate insurable hours during the summer non‑teaching period while no allocation of earnings is made for that period and therefore benefits may be paid. To avoid situations where a teacher is paid benefits for the summer non-teaching period and also receives credit for the insurable hours during that same period, the following applies.
If a teacher files a subsequent claim after having received benefits in the non-teaching period, the Record of Employment will be reviewed to determine the insured hours and earnings that fell in the non-teaching period.
A determination will be made as to whether the insured hours from that non-teaching period are required to establish the subsequent claim.
If a teacher requests or requires credit for the insurable hours during the summer non-teaching period, an allocation of earnings will be done for the non-teaching period under EIR 36(5)1.
If a teacher does not require all the insured hours during the non-teaching period, the allocation of earnings would only cover the hours that are credited for the subsequent claim. For example, if a teacher required 600 hours to qualify for benefit and only 560 hours fell in the teaching period we use the required 40 hours from the non-teaching period and allocate the insured earnings for those days. The balance of the hours from the non-teaching period would not be used to establish the claim unless the teacher requested credit for all of the insured hours during the non-teaching period. An allocation of earnings would then be done for the non-teaching period.
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