Digest of Benefit Entitlement Principles Chapter 8 - Section 9

8.9.0 Disentitlement for a number of days in a week

The Commission has the authority to make regulations specifying the number of days of disentitlement to be imposed in a week for a claimant who has lost or cannot resume part-time employment by reason of a stoppage of work due to a labour dispute. A disentitlement in a week may be for a period of one to five days, in accordance with EI Regulation 52.

It is important to establish whether it is part-time employment that the claimant lost or is unable to resume. The effect of the disentitlement will not be the same as that imposed on a full time employee (Digest 8.1.6).

8.9.1 Part-time employment

The employment at issue is part-time employment that the claimant has lost or is unable to resume for reasons related to a labour dispute (EI Act 36(1)). Generally, part-time employment means employment that is engaged in other than continuously full-time. Part-time employment may include a period of work at full-time as, for example, a person who works full-time one week every two weeks.

The pattern of employment of a person may, at a certain time, change, such that, instead of full-time employment, the employment becomes part-time, or vice versa. The issue to be decided when considering if it is full-time or part-time employment that a claimant has lost or is unable to resume, is their pattern of employment at the time it was lost or could not be resumed because of a stoppage of work.

The claimant's pattern of employment may be different at the time they are unable to resume a previous employment, than what it had been before. It may be that the claimant is unable to resume part-time employment because of the stoppage of work, but they had a full-time job for the same employer in the past. The opposite is also possible; that is, the claimant is unable to resume full-time employment that was previously part-time, due to the stoppage of work.

8.9.2 Disentitlement proportional to part-time employment

For the claimant who has lost or is unable to resume part-time employment because of a stoppage of work due to a labour dispute, the number of days of disentitlement in a week will be in accordance with the regulation as follows (EI Regulation 52(2)):

“. . . the number of days of disentitlement of the claimant in a week is, for the percentage that is set out in column I of the table to this subsection and that is the ratio between the claimant’s average weekly insurable earnings in that part-time employment and the weekly insurable earnings as determined under section 14 of the act, the corresponding number of days of disentitlement set out in column II of that table ...”

The number of days of disentitlement in a week is a function of the claimant's average weekly earnings from that part-time employment as a percentage of the weekly insurable earnings in the claimant's calculation period. Thus, depending on whether the percentage of the normal weekly earnings is small or large, the days of disentitlement in a week will vary from zero to five.

The objective here is to disentitle a claimant, or in other words reduce the weekly benefits, only to the same extent as the part-time employment that has been lost or cannot be resumed due to the stoppage of work. This introduces the notion of equity that had not been part of the prior provisions (Digest 8.9.0).

The percentage of part time earnings in comparison to normal earnings represents what was intended to be measured. That is, the relative importance of the part-time employment that a claimant has lost or is unable to resume due to a labour dispute, to the employment(s) used to establish the weekly rate of benefit (Digest 8.9.3 and Digest 8.9.4). Once the percentage of the part-time earnings to the full-time earnings is known, the table in EI Regulation 52(2) is used to determine the number of days of disentitlement in a week.

The disentitlement must be for a precise number of days in a week, and continues for each week for as long as the disentitlement applies (is not ended or suspended) (Digest 8.1.7 and Digest 8.1.9); the days where the disentitlement may apply are not predetermined and may not be the same from week to week.

The fact that the start or end of a period of disentitlement occurs in the middle of a week does not change anything in respect of the number of days of disentitlement that will apply in a week of unemployment. What must be ensured is that the number of days of disentitlement applied to either the first or the last week of the stoppage of work, does not exceed the number of days that are affected by the stoppage of work. If, for example, the prescribed disentitlement is to be for three days a week and the end of the period of disentitlement occurs on a Monday; the disentitlement would only apply for one day in that week.

Finally, because the claimant's weekly insurable earnings in the calculation period could change from one benefit period to the next, the calculation of the number of days of disentitlement in a week could equally change from one benefit period to the next. Thus, even where the same part-time employment and the same stoppage of work straddles two benefit periods, the exact number of days of disentitlement in a week for this claimant may be different from one benefit period to the next.

8.9.3 Average weekly earnings from part-time employment

The regulations introduce the concept of average weekly earnings from a part-time employment that the claimant has lost or is unable to resume because of a stoppage of work due to a labour dispute.

At the outset it must be shown that at the moment the part-time employment was lost or could not be resumed, the claimant had worked or would have worked in this employment according to a definite pattern. In this context it is logical that the determination of the average weekly earnings from the part-time employment would be determined based on this pattern of employment.

In most cases the information on the record of employment (ROE) will be sufficient to determine the pattern of employment. Where the information is not available, the information could be obtained from the claimant. The employer must be contacted when the information obtained is insufficient, not credible or contradicts information contained on the ROE.

Numerous scenarios may exist in the establishment of the claimant's pattern of employment at the moment when they lost part-time employment. The first scenario could be the regularity of the pattern of the part-time employment. For example, the claimant who works one day every two weeks and earns $180 would have average weekly earnings of $90 in this case.

In another case it could be an irregular pattern of part-time employment, such as the claimant who works on an on-call basis with varying earnings and at irregular intervals. In this case the approach taken should be reasonable and take into consideration the realities of this part-time employment. In this sense a window of twenty consecutive weeks preceding the moment when the claimant lost the part-time employment constitutes a sufficiently long period to reflect the recent reality of this part-time employment and permit a satisfactory determination of the average weekly earnings.

The actual earnings from the part-time employment during the 20-week window will be divided by the number of weeks worked during that period, to determine the average weekly earnings from the part-time employment. The actual earnings in a given week could be minimal or nil, if the claimant had not worked. It could also surpass the maximum insurable earnings, if they had worked full-time.

If the irregular pattern of part-time employment started in a week within the preceding twenty weeks, then the calculation will only go back to that week and consequently will cover a period of less than twenty weeks. Thus, for example, within a window of twenty consecutive weeks, it is only at the tenth week that the claimant's employment, which was on a regular part-time or a full-time basis, becomes irregular part-time employment. For the purposes of the calculation, only the weeks from where the employment became irregular part-time, would be considered; that is, from the tenth week.

The fact that the pattern of employment had only recently become part-time when the claimant lost that employment will not change this approach. It is the pattern that the claimant would have normally continued to work, had it not been for the stoppage of work. It is from this pattern of employment, regular or irregular, that the average weekly earnings will be determined, even when that pattern of work just recently started.

This will not be the case however when the recent pattern of employment would only have been for a short period, or was directly related to the anticipated stoppage of work. For example, a claimant whose regular pattern of employment of two days a week for $150 was increased to four days a week because of the looming stoppage of work. In that case we would determine the average weekly earnings based on the pattern of employment which previously existed, without taking into consideration the most recent pattern. This would result in average weekly earnings of $150.

The approaches developed to this point would equally apply to claimants who are unable to resume a previous employment. The pattern of work in the future, had there not been a stoppage of work, would in most cases be the same as the past employment held with this same employer. In this case, average weekly earnings will be determined on the basis of the past pattern of part-time employment, whether it was regular or irregular.

However, if indications are that in the absence of the stoppage of work, the pattern of employment going forward would have been different than the past pattern of part-time employment the average weekly earnings will be calculated based on what the claimant's future pattern of part-time employment would have been, had it not been for the stoppage of work.

8.9.4 Weekly insurable earnings in the calculation period

According to EI Regulation 52, the number of days of disentitlement in a week is a ratio between the average weekly earnings from part time employment, and the weekly insurable earnings in the claimant’s calculation period (Digest 8.9.2).

The calculation period of a claimant is a specific number of weeks, in their qualifying period, whether consecutive or not, during which they had their highest earnings. That number of weeks is determined in accordance with the table set out in subsection 14(2) of the EI Act, which is based on the rate of unemployment in the area in which the claimant resides.

The weekly insurable earnings are obtained by adding the insurable earnings in the claimant’s highest earnings weeks as determined above, and dividing the total by the number of weeks in the table.

[April 2019]