A subject often considered by our clients, a subject never considered in any detail by lawyers. With the recent pandemonium in the workplace wrought by the pandemic, the institution of the CERB, the extension of the CERB, the delay in EI benefits as a result, and the impact on so many employers and employees, have all resulted in more attention being given to this usually innocuous document.
A Primer
The Employment Insurance Regulations requires the record of employment (“ROE”) be issued no later than five days from “the first day of the interruption of earnings”. An “interruption of earnings” occurs, according to those same regulations, where an employee is laid off or separated and has “a period of seven or more consecutive days during which no work is performed for that employer and in respect of which no earnings that arise from that employment”.
Although one may be inclined to interpret this to mean that the interruption of earnings has not occurred until the seventh day from the lay off or separation (thereby providing an additional five days beyond that to issue a ROE), you’d be mistaken; the Canada Employment Insurance Commission (“CEIC”) has provided guidance that the first day of the interruption of earnings occurs when the employee “has had or is anticipated to have” met that threshold, resulting in the first day being the first day of a layoff or permanent separation from employment.
There are exceptions to this rule, the most significant of which applying to employees whose earnings are mainly commissions. In such circumstances, a ROE must be issued no later than five days after the “contract of employment is terminated”.
Other exceptions exist, and entirely different timelines apply when filing the form online, but my easy-to-follow rule has been that ROEs should be issued within five days of a layoff or termination. Given the minimal resources that go into issuing a ROE, it’s best to avoid any headaches delay may cause.
What Headaches?
Principally, you’re opening the door to the employee making bad faith claims if you delay in issuing the ROE or issue it with incorrect information. Either situation will result in delay in the employee receiving EI regular benefits. Given the already multifarious grounds on which an employee will claim bad faith, why give them an easy win?
By way of example (I’ll give you two!), in Morison v Ergo-Industrial Seating Systems Inc., 272 ACWS (3d) 770, the judge considered the two-month delay in issuing the ROE as part of the nexus of events that supported an order for $50,000 in punitive damages. Similarly, in Ellis v Artsmarketing Services Inc., 2017 CanLII 51563 (ON SCSM), the Small Claims Court judge found that “[i]t is obvious that the dithering by the defendant for about five months before submitting the ROE is inexcusable and caused the plaintiff stress and inconvenience for no good reason”, and awarded $1,000 in “inconvenience damages”. So it’s real.
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