[OFFICIAL ENGLISH TRANSLATION]
2002-736(EI)
BETWEEN:
FRANÇOISE DUPUIS,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
Appeal heard on May 29, 2002, at Percé, Quebec, by
the Honourable Judge Alain Tardif
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: Claude Lamoureux
JUDGMENT
The appeal is dismissed and the Minister's decision is confirmed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 6th day of June 2002.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 18th day of September 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20020606
Docket: 2002-736(EI)
BETWEEN:
FRANÇOISE DUPUIS,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR JUDGMENT
Tardif, J.T.C.C.
[1] This is an appeal concerning the appellant's insurable hours during the period of work from May 21 to October 6, 2001, when she was employed by the "Comité Local de Développement de l'Anse à Valeau".
[2] The evidence showed that the appellant had been employed by the "Comité Local de Développement de l'Anse à Valeau" for a period of 20 weeks.
[3] That employment was wholly subsidized by the Government of Quebec. The work consisted in acting as a guide-interpreter and replacement for the reception officer when she was absent.
[4] The appellant worked five days a week and had two days off, as did the other three guide-interpreters hired by the employer. The appellant's work schedule was from 9:00 a.m. to 6:00 p.m. and was established by the payer's team leader.
[5] The appellant was part of a team that shared the working hours for the visiting public on the basis of a schedule.
[6] At the outset, it was agreed that the wage would be $7 an hour for 40-hour weeks for a period of 20 weeks. The parties on both sides accepted the said conditions, particularly since the arrangement was essentially based on the return of a grant obtained under an agreement (Exhibit I-2), which provided for an hourly wage of $7 for 40-hour weeks over a 20-week period. The hourly wage was increased by an amount of $1.93 an hour for the entire 20-week period as a result of another grant obtained by the payer from an anti-poverty program.
[7] The appellant began work as planned. To be able to start her work at 9:00 a.m., she had to stop at another office at around 8:30 a.m. to pick up certain items. At noon, the employees, including the appellant, had one hour for lunch. The appellant and her fellow workers finished work at 6:00 p.m. That was the basic work schedule.
[8] From time to time, when things got busy, the guides had to work into their lunch hour or finish work later than 6:00 p.m. To compensate for this it was agreed that, at the end of the tourist season, the guides could leave before the determined hour of 6:00 p.m. for two reasons. First, the site had no electrical service and, second, darkness fell much earlier than at the start of the period.
[9] The appellant thus compiled and added to the regular work hours agreed upon a half-hour per day for the period from 8:30 to 9:00 a.m. and a half-hour to all the noon periods, since it appears that she generally had only 30 minutes for lunch.
[10] Despite the importance of the grievance regarding the number of hours, at no time during the 20-week term of the contract was the employer informed in any way whatever that the appellant was dissatisfied with the hours. It was not until after the 20-week work period that the claim was submitted to the employer. The claim was also the subject of a formal application to the Commission des normes du travail du Québec.
[11] The appellant admitted and acknowledged that the primary basis of her claim was to increase her claim for employment insurance benefits. In support of her claims, the appellant referred to Exhibit A-1, which reads as follows:
[TRANSLATION]
August 20, 2001
Give the tours even at 5:55 p.m.; give them and, even if it is 6:00 p.m., give the tour for the tourists.
Do not discard this memo.
Blandine Poirier, Pres.
Because in the fall, in September, darkness falls sooner and you will be able to finish earlier and will thus get your time back. To be paid for 40 hours. Think about it, B.P.
[12] The point for determination is whether the hours in question, that is the half-hour every morning and the half-hour at lunchtime, constituted insurable hours within the meaning of the Employment Insurance Act.
[13] The evidence clearly showed that the hours in question did not come within the contract of service agreed to between the parties. The appellant interprets the memorandum from the employer's agent in her own manner, that is, that toward the end of the period, employees would have the opportunity to receive the same remuneration, even though the number of hours worked was much lower than the 40 hours provided for in the initial agreement. Furthermore, the literal meaning of the memo in question is not at all consistent with the appellant's interpretation. That meaning corresponds precisely to the employer's version.
[14] The appellant interprets the content of that memorandum as meaning that the extra hours worked would eventually be accounted for and paid at the end of the 20-week period.
[15] I do not believe that this is the meaning that should be given to the memo. The employer's agent stated that, at the end of the period, the hours of work would clearly be reduced because of darkness, thus enabling the employees, including the appellant, to receive the same salary for fewer hours worked.
[16] A contract of service is a genuine contract that requires the express or implied consent of the two contracting parties. Neither of the parties can amend it unilaterally, in which case the party subject to the unilateral change has no obligation to comply with the amendment to which that party has not given his or her consent.
[17] In respect to an employment contract, however, the employer is and may be subject to compliance with the various statutory provisions respecting the environment, occupational safety, minimum conditions and certain standards respecting dismissal and so forth. I do not believe that those specific provisions affect the legal framework regarding insurable hours.
[18] Certain relevant provisions should be reproduced. Section 2 of the Insurable Earnings and Collection of Premiums Regulations reads as follows:
INSURABLE EARNINGS
Earnings from Insurable Employment
2.(1) For the purposes of the definition "insurable earnings" in subsection 2(1) of the Act and for the purposes of these Regulations, the total amount of earnings that an insured person has from insurable employment is
(a) the total of all amounts, whether wholly or partly pecuniary, received or enjoyed by the insured person that are paid to the person by the person's employer in respect of that employment, and
(b) the amount of any gratuities that the insured person is required to declare to the person's employer under provincial legislation.
(2) For the purposes of this Part, the total amount of earnings that an insured person has from insurable employment includes the portion of any amount of such earnings that remains unpaid because of the employer's bankruptcy, receivership, impending receivership or non-payment of remuneration for which the person has filed a complaint with the federal or provincial labour authorities, except for any unpaid amount that is in respect of overtime or that would have been paid by reason of termination of the employment.
[19] Section 9 of the Employment Insurance Regulations reads as follows:
UNEMPLOYMENT BENEFITS
Hours of Insurable Employment -- Methods of Determination
9.1 Where a person's earnings are paid on an hourly basis, the person is considered to have worked in insurable employment for the number of hours that the person actually worked and for which the person was remunerated.
9.2 Subject to section 10, where a person's earnings or a portion of a person's earnings for a period of insurable employment remains unpaid for the reasons described in subsection 2(2) of the Insurable Earnings and Collection of Premiums Regulations, the person is deemed to have worked in insurable employment for the number of hours that the person actually worked in the period, whether or not the person was remunerated.
[20] In the instant case, the appellant's employment contract was shaped entirely by a contract entered into between the payer and the Government of Quebec (Exhibit I-2). That contract specifically provided for the content of the contracts of employment that would ultimately govern the employees, including the appellant. The contract between the Government and the Comité local de développement provided the following:
- Number of hours per week : 40
- Hourly wage : $7
- Subsidy rate : 100 percent
- Duration of employment : 20 weeks
[21] The employment contract of the interested parties was subsequently improved when the salary was increased by $1.93 an hour, as a result of another labour support program.
[22] The evidence adduced by the appellant did not show on the balance of evidence that an agreement to increase the number of hours had been made in connection with the contract entered into between the parties, which contract stipulated 40 hours.
[23] The explanations provided neither justified nor supported the appellant's claims, particularly since she admitted that her claims had been strongly influenced by her wish to see her employment insurance situation improved.
[24] Consequently, the evidence does not justify the Court's intervention. I confirm that the number of insurable hours attributed by the respondent was completely consistent with the initial agreement providing that the appellant was required to work 40 hours a week for a period of 20 weeks.
[25] This conclusion is moreover consistent in every respect with the statutory provisions quoted above.
[26] The appeal is dismissed.
Signed at Ottawa, Canada, this 6th day of June 2002.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 18th day of September 2003.
Sophie Debbané, Revisor