Digest of Benefit Entitlement Principles Chapter 4 - Section 3

4.3.0 Hours controlled by employer

Employment in which the employer controls the hours of work is the most common type of employment: the worker provides services for compensation pursuant to a contract of service. With respect to such workers, a general definition of a full working week is given in EIR 29, 30 and 31, along with clauses regarding specific types of workers.

4.3.1 Employees in general

For most employees, any working week during which they work less than a full week and receive less than the full weekly compensation is a week of unemployment (EIA 11). A full working week consists of the number of hours normally worked by full-time employees in the same grade, class or shift at the premises where the claimant is employed (EIR 31(1)).

In determining whether a person has worked a full working week, holidays observed at the premises where the person is employed are counted as working days, whether or not compensation is received for these. The same is true for the day immediately preceding or following the holiday, when it is considered part of the holiday (EIR 29(3)). On the other hand, if the week under consideration is proven to be a week of unemployment, holidays and days off within that week are regarded as non-working days, provided that they are not paid.

Exceptionally, when the full working week of a class of workers is much shorter than that normally worked elsewhere by full-time employees doing similar work, this is considered to be a week of unemployment (EIR 31(2); Jurisprudence Index/week of unemployment/babysitting/).

It must be remembered that the amount of wages received for a full working week is not a decisive factor. A person employed in a government project under which she received $25 per week for 30 to 37 hours of work was held to be not unemployed as she worked approximately the same number of hours as other employees (Jurisprudence Index/week of unemployment/government programs/; FCA A-1166-87, CUB 14399). The number of days worked is not a decisive factor either. This is because the test relates to the number of hours worked in the week. A compressed workweek may be a good example of an employee who works a full working week in less than 5 days.

4.3.2 Piece workers

With respect to piece workers who do not control their own working hours, the full working week is not based on the number of hours worked, but solely on the number of days per week normally worked by employees in the same grade, class or shift, at the premises where the claimant works (EIR 31(3)). Consequently, a week of unemployment is one in which the claimant works less than this number of days.

The above rule applies to any worker who is remunerated on a piece, mileage or other unit rate (EIR 31(3)), but does not apply to railway employees paid on a mileage basis (EIR 29(1)).

4.3.3 Railway employees

In the case of railway employees paid on a mileage basis, reference must first be made to the specific period under consideration, that is, the 2-week period covered by the weekly claim form submitted by the claimant (Digest 1.9.0, Digest 1.9.1). If the amount of wages earned during those 2 weeks is less than twice the maximum weekly insurable earnings, each week is deemed to be a week of unemployment; if not, each week is deemed to be a full working week (EIR 29(1); EIA 14(1.1)). That is to say, the number of hours and days worked in each week or the total for both weeks is not a decisive factor.

In exceptional circumstances where a weekly claim form covers only one week instead of 2 (Digest 1.9.1), reference should be made to the rules applicable to piece workers. As for railway employees who are not paid on a mileage basis, the full working week is the same as that of employees in general.

4.3.4 Employees in farming or horticulture

Workers employed in farming are not considered to be unemployed during any week in which they work at least 5 days and at least 35 hours. The same is true for workers employed in horticulture (EIR 29(2)).

This clause applies only to employees whose working hours are controlled by an employer. Workers in agriculture or horticulture, who control their own working hours are governed by other provisions dealing with self-employment (EIR 30(1) and (4)).

4.3.5 Lay days or periods of leave

When a person has had an interruption of earnings (Digest 2.3.2) and a benefit period is established, the question that arises is whether the person is considered unemployed; that is, is the week(s) in which the claimant does not work, considered a week of unemployment.

In some workplaces, employees will regularly work more hours, days or shifts than what other individuals who work full-time elsewhere, normally work in a week. This could include workers in isolated worksites such as mines or sites, ocean platform drilling rigs and vessels on the St. Lawrence or Great Lakes, or work in various processing plants.

Other workplaces whose operations are continuous may also have similar uninterrupted work patterns. Quite often in these cases employees will have a work pattern where they work for 6, 7 or more continuous days, followed by the same number of days off.

Another pattern of work that is common is one in which the employee, according to a schedule with their employer, works more hours in a week than is normally considered full-time employment, and accumulates a period of leave to compensate for the extra hours worked within an established calendar period. The days covering the period of leave are often referred to as lay days.

Generally, employees who have these types of work patterns would not be considered unemployed during the period of lay days, for the purposes of the EI Act. Even if specific provisions under a verbal or written agreement of employment, or a collective agreement, provide the method pursuant to which the period of leave is determined, these agreements do not supersede the Act. There are 2 basic methods for determining the period of leave: one is based on a credit system whereby credits are earned and accumulated based on the number of hours or days worked, while the other method is based on an established schedule of alternating periods of work and leave, during a period of employment.

The EI Act stipulates that, where, in each week, an insured person works a greater number of hours, days, or shifts, than are normally worked in a week by a person employed in full-time employment, and is entitled to a period of leave, pursuant to an employment agreement, the claimant shall be deemed to have worked a full working week during each week that falls wholly or partly, in the period of leave (EIA 11(4); EIR 14(3)).

There is no formal definition of full-time employment in the EI Act or regulations. What constitutes full-time employment is a factual determination that should be based on evidence. On a case-by-case basis, a review of local labour market information and terms of the Employment Standards Act in the claimant's province or territory of employment should be reviewed to assist with the determination of what constitutes the number of hours normally worked in a week by persons employed in full-time employment.

When the claimant works more hours or days than normal and is entitled to a period of leave to compensate for the additional work, the claimant is considered "not unemployed" during any week which the period of compensatory leave falls. When making this determination, the first condition relates to the number of hours of work itself, and the second condition relates to whether there is an entitlement to a period of leave under a verbal or written agreement, or an employment contract.

It cannot be presumed based on an individual's work pattern, that an agreement with the employer providing for a period of leave exists; the file must contain evidence that an agreement (verbal or written) providing for the entitlement of lay days or a period of leave, exists. A decision to consider that a person is not unemployed for the above reasons must be based, as any other decision, on tangible evidence.

When there is no such agreement or the collective agreement or contract of employment does not refer to lay days or to a period of leave for working a greater number of hours, days or shifts than are normally worked, it will be concluded there is a termination of employment at the end of each period worked. Claimants in this situation would be treated in the same manner as any other claimant who works long hours, is paid accordingly, and are therefore, considered to be unemployed. Standard availability rules apply.

With respect to the accumulated days of leave, what must be determined when an employer's activities cease or a lay-off or separation occurs is whether, according to the verbal or written contract of employment or collective agreement, the insured person has a right to use up the lay days or accumulated leave credits. If this is the case, then that person can only be considered unemployed after the expiration of the period of leave, the lay days or accumulated leave credits (Jurisprudence Index/interruption of earnings/compensatory leave/; FCA A-708-92, CUB 20866).

However, if the collective agreement or the verbal or written employment contract stipulates that the claimant loses those lay days or accumulated leave credits when their employment terminates, or when the employer's activities cease, the claimant is considered unemployed from the time the employment stops. This is because there is no longer an entitlement to a period of leave (FCA A-58-06, CUB 65103). In this case, the issue may be one of allocation of earnings if the claimant is paid for the accumulated lay days (EIR 36(9)).

A claimant may have a regular pattern of alternating periods where they work a higher number of hours or days than normal, which is followed by a period of leave. In this situation, the week in which the lay days or period of leave falls, cannot be considered a week of unemployment when it falls within a period covered by the alternating work and off work schedule (FCA A-92-03, CUB 56090A; CUB 52217A; Jurisprudence Index/interruption of earnings/compensatory leave/). However, if in a week, the lay days or period of leave falls after the employer's activities stop, the claimant will be considered unemployed as of that week. In fact, it is considered that the established schedule of alternate periods of work and leave is interrupted for the duration of the period when the employer's activities are stopped, provided that, during that week, the individual had not used any lay days or accumulated leave days, prior to the stoppage of the employer's activities.

When or if the employer's operations resume it may be difficult to determine whether or not the claimant remains unemployed now that the schedule of work has been reactivated. Whether the effective first day of work is at the beginning of the week or later in the week, if it is followed by a period of leave in that week, the claimant will be considered not unemployed for the entire week. Otherwise, the issue will be one of allocation of earnings (EIR 36(4)). As well, the claimant will be subject to all of the requirements for proving availability for work.

In a scenario where there is a set pattern of work and the employee does not work more hours in a week, than would be considered normal (40 hours; 5 days, followed by a week off), the determination of whether the week off is considered a week of unemployment requires careful consideration.

The issue of a claimant's availability for work must also be considered. The EI Act requires that claimants be capable of and available for suitable employment while in receipt of EI regular benefits. Entitlement to benefits does not rely solely on the fact that one is available for work but rather on their proving it. Claimants must prove that, for each day they request payment of regular benefits, they are available for and actively seeking employment and are not placing undue restrictions on their availability.

These principles apply equally to claimants who work a pattern of alternating weeks of normal hours and weeks off. Those claimants must continue to be willing to seek and accept suitable work during their off weeks. They must also be able to provide a record of their job search efforts for any week for which benefits are claimed, when requested by the Commission, as with any other claimant.

[April 2021]