A GSU member received notice that his position was being eliminated effective December 30, 2015.
The union member elected to go on layoff subject to recall and to defer his employment termination date for six months, as provided for in Article 24 – Position Elimination of the GSU collective agreement with CPS. The member applied for and received EI benefits as well the supplemental employment benefit top up provided in the GSU collective agreement.
The union member’s employment with CPS terminated on June 30, 2016, and on that date he became eligible to receive severance pay under the terms of GSU’s collective agreement. Severance pay was subsequently calculated and paid to the member by CPS and a record of employment was issued to reflect that fact.
On September 28, 2016, the GSU member received notice from the EI Commission that the monies he received for banked overtime, vacation pay, and severance pay would be allocated to his EI claim back to January 2, 2016 and the EI benefits he received (totaling $14, 499) would be clawed back.
The member requested that the EI Commission’s decision be reconsidered, but on December 23, 2016, his request was denied.
On January 26, 2017 the member appealed the EI decision to the Social Security Tribunal of Canada (General Division) which heard and denied his appeal on September 6, 2017. On October 13, 2017 an application for leave to appeal this decision was filed on behalf of the member by GSU and on February 7, 2018 leave to appeal was granted by the Appeal Division of the Social Security Tribunal of Canada.
As a result of the significance of this case for the member involved and every GSU member whose job is eliminated under collective agreement terms the same or similar to the agreement with CPS, GSU retained lawyer Ronni Nordal to represent the member in the appeal process.
Ms. Nordal submitted a written brief which said, amongst other things,
“In the circumstances of this case, (union member’s name) continued to be an employee of CPS, and to have rights under the Collective Agreement, which are only available to employees, up to June 30, 2016. Had (union member’s name) been the successful applicant to a permanent CPS positing during the period December 30, 2015 to June 30, 2016, he would not have been entitled to receive any severance pay.
The right to severance pay did not exist until the employment relationship came to an end – which occurred on June 30, 2016. Therefore the severance payment should not be allocated to a period of time before Mr. Berrns was entitled to the same – it should not be allocated to a period of time period to June 30, 2016.
The severance payment was only payable after the employee-employer relationship came to an end… upon separation, which occurred June 30, 2016. Therefore, the decision to allocate the $92,236.80 severance payment back to the period commencing with lay-off (December 30, 2015) and the start of the claim (January 3, 2016) constitutes an error in law. The $92,236.80 severance payment can only be properly allocated as earnings as of June 30, 2016.”
After some procedural hiccups on the part of the Appeal division of the Social Security Tribunal, the members’ appeal of the decision to claw back the EI benefits he received was finally heard on June 12, 2018. And, great news arrived six days later when the appeal was granted.
The written decision by the Appeal division said the following, in part.
“… I accept that the Claimant did not finally separate from employment until the expiry of the six month deferral period. The terms of the Agreement explicitly stated that the Claimant’s termination was deferred for six months from the position elimination (December 30, 2015) and the Claimant retained privileges specific to employees during that deferment, including preferred access to other positions with the employer. Furthermore, the Claimant could not have obtained his severance earlier than he received it unless he also forfeited his employee status and certain benefits or privileges. He would not have been entitled to receive severance at all, had he been able to secure a position with the employer within the six month period .…”
“While this process took a long time, the ultimate win is huge for the GSU member and members generally,” said GSU general secretary Hugh Wagner. “Collective agreement rights covering position elimination, EI top up benefits (SEB), and severance pay were first bargained by GSU in 1986. These particular rights are unique to GSU’s collective agreements with Heartland Livestock, Crop Production Services (Canada), Richardson Pioneer, Viterra and Western Producer.
“We’ve had experience with some employers trying to undermine the position elimination rights of GSU members by putting erroneous information in ROEs and the like,” Wagner said. “Perhaps they are envious of the union advantage because their non-union employees don’t have the same rights under employers’ HR policies.”
“Whatever the circumstances, when members encounter an EI snag GSU is always there to help,” Wagner said. “I thank the union member for his tenacity and also thank Lawrence Maier, Steve Torgerson and Ronni Nordal for their hard work in this case. “
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