Date: 19971222
Docket: 96-2177-UI
BETWEEN:
RÉJEAN GAGNÉ,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Reasons for Judgment
TARDIF J.T.C.C.
[1] This is an appeal from a determination dated October 7, 1996. By that determination the respondent concluded that the appellant's employment with Garage Alain Gagné Inc. was a contract of service for the period from January 10 to April 18, 1996.
[2] At the same time, the respondent determined that the week of April 18 to 25 in that year was not an insurable week as the appellant, at the payer's request, did not physically work; the payer had to pay the appellant's salary for that week of notice, according to the legislation that applies when an employee is dismissed.
[3] All the facts on which the determination was based were admitted by the appellant; they are as follows:
[TRANSLATION]
(a) the appellant began working for the payer on January 10, 1996;
(b) the payer dismissed the appellant on April 18, 1996;
(c) the appellant did not work for the payer after April 18, 1996;
(d) on May 2, 1996 the payer gave the appellant two cheques, one representing his vacation pay (four percent) and the other his pay in lieu of notice;
(e) from January 10 to April 18, 1996 there was an employer-employee relationship between the appellant and the payer.
[4] Consequently, the parties essentially argued in support of their respective cases.
Appellant's position
[5] The appellant referred to Hélène Boulianne v. M.N.R., 96-46(UI), in which Deputy Judge Somers held that the period of time in which Ms. Boulianne had sat as a juror were insurable weeks. Deputy Judge Somers said at that time:
In the case at issue, the appellant continued to be employed and her remuneration was paid under a contract of employment. The collective agreement enables the appellant to fulfil a legal obligation to society. The appellant was paid without penalty as though she had worked her regular hours as an employee at the payer's plant.
By inference from the interpretation of clause 27.02 of the collective agreement, the payer retained control over the appellant; she was required to report to work as soon as possible if she had not been selected as a juror. Necessarily, she was required to report to work once her duties as a juror were completed. An employer's control over its employee is one of the key elements, inter alia, in determining whether there is a contractual relationship.
[6] To complete and expand on his reasoning, counsel for the appellant also referred to the Act respecting Labour Standards, specifically ss. 57 and 82, which read as follows:
57. An employee who is at his place of employment and is required to wait for work to be assigned to him is deemed to be working.
82. The employer must give written notice to an employee before terminating his contract of employment or laying him off for six months or more.
The notice shall be of one week if the employee is credited with less than one year of uninterrupted service, two weeks if he is credited with one year to five years of uninterrupted service, four weeks if he is credited with five years to ten years of uninterrupted service and eight weeks if he is credited with ten years or more of uninterrupted service.
A notice of termination of employment given to an employee during the period when he is laid off is null, except in the case of employment that usually lasts for not more than six months each year due to the influence of the seasons.
This section does not deprive an employee of a right granted to him under another Act.
[7] Counsel for the appellant maintained that the Act respecting Labour Standards was a sort of minimum protection which the provincial legislature had created to assist workers in certain circumstances. He also argued that the Act gave certain workers minimum protection that was usually contained in collective agreements.
[8] In the appellant's submission this period of one week was an integral part of the contract of employment by simple operation of the Act respecting Labour Standards.
[9] He argued that the payer had retained its authority and the relationship of subordination still existed during the week at issue, although in fact the appellant had not physically worked. The fact he had not done his usual work was in itself something beyond the appellant's control, as the employer had exercised its right to require him to remain at home.
Respondent's position
[10] The respondent maintained that the Somers decision was an equitable decision in a very special and, most of all, very deserving case, and ultimately concluded that the precedent was not applicable.
[11] The Minister relied on a decision by Pierre Denault J., the umpire in Rachel Lamontagne, dated May 31, 1988, in which he concluded as follows:
[TRANSLATION]
It remains to be seen whether the board of referees was right to consider “that the week’s notice of termination may be regarded as a week of insurable employment.”
Section 36(6) of the Regulations states:
Sec. 36(6) Notwithstanding Subsection 35(4), for the purposes of Part II of the Act, a claimant shall not be deemed to have had a greater number of weeks of insurable employment in any one employment period than the number of weeks or part weeks that fall between the first and last dates of that employment.
The application of this section in practice leads me to conclude that money paid to an employee in lieu of notice but without the employee actually working operates to increase insurable earnings in that pay period but cannot count as an additional week of insurable employment.
[12] Based on this decision, the respondent maintained that this week was not insurable; counsel stated that the insurability of employment depended on the performance of work. As the appellant had not physically performed his usual work during the week in question, she concluded that the appeal should be dismissed.
Analysis
[13] The insurability of employment depends on whether or not there is a contract of service, and this depends on a number of conditions. Work must be done and remuneration paid based on the quality of the work, and this must all be in the context of a relationship characterized by subordination of the person doing the work to the person assuming the obligation of payment.
[14] The person doing the work must be subject to and accept the instructions and directions of the person who has the power to control the work; in other words, the work must be done in accordance with the payer's orders, directions and wishes.
[15] What is generally meant by work or the doing of work is the performance of physical and/or mental activities, performance of which is useful to and assists in achieving a desired result which the payer giving out the work wishes to achieve. Ensuring the consistency of or coordinating and planning the work are the responsibility of the person who has the right of control, who may have all kinds of requirements which he or she regards as useful or necessary to the desired end.
[16] What happens if the holder of this power of control decides to require his or her subordinate not to be involved in performing any physical or mental task for what he or she considers to be the good of the business? It may be that the boss will decide that the success of the business requires that the subordinate individual be excluded from "productive" activities. This is essentially a real, concrete manifestation of the payer's authority. The worker cannot be penalized for complying with the authority to which he is subject. The appellant does not have to suffer any penalty resulting from a choice in which he was not involved. For my part, I believe that the appellant essentially complied with the orders and directions of his employer.
[17] For these reasons, the appeal is allowed in that the week of April 18 to 25 is an insurable week.
Signed at Ottawa, Canada, December 22, 1997.
Alain Tardif
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 16th day of November 1998.
Kathryn Barnard, Revisor