Second employment not factor in maternity leave EI top-up

Agreement’s intention was to augment pay disparity

Second employment not factor in maternity leave EI top-up

A Saskatchewan worker is entitled to a maternity leave top-up based on the EI benefits she would have received before outside earnings were accounted for that reduced those benefits, an arbitrator has ruled.

Legal Aid Saskatchewan (LAS) is an organization providing legal services to persons and organizations for criminal and civil matters who are financially unable to obtain those services. It employs lawyers, legal assistants and administrative staff throughout Saskatchewan.

LAS had a collective agreement that provided employees who went on maternity leave and were eligible for employment insurance (EI) benefits with a top-up of their EI payments that would bring them up to 95 per cent of their regular salary for 17 weeks. This involved payment of 95 per cent of the employee’s salary during the two-week waiting period for EI benefits followed by payments equal to the difference of 95 per cent of the employee’s salary and “the gross employment insurance benefit for an additional 15 weeks.”

In February 2018, a staff lawyer with LAS at its Prince Albert, Sask., office went on maternity leave. She had been with LAS for 12 years and — in addition to her full-time role with LAS — she was an elected city councillor. She would continue to receive her city councillor salary while on maternity leave, so she asked about her eligibility for top-up payments since she had outside income.

The lawyer’s EI benefit rate would have been $547 per week based on her LAS salary but her city councillor salary reduced her EI payments to $40 per week. LAS paid her top-up based on the amount of EI payments she would have received based only on her LAS salary, before it was reduced due to her city councillor income.

The union filed a grievance, arguing that the collective agreement’s wording entitled the employee to a top-up based on the amount she actually received from EI. The union pointed out that the plain language of the collective agreement stated that the lawyer was entitled to a “supplementary payment from the employer based on her gross payment from EI, not the payment she would have received from EI if not for her income as a city councillor. As a result, the top-up payment should cover the difference between the $40-per-week EI payment she actually received — her gross EI benefits payment — and 95 per cent of her weekly salary, said the union.

The employer argued that for the purposes of the collective agreement, “the gross EI benefit” meant “prior to any deductions from benefits” including earned income.

The arbitrator noted that “gross” wasn’t defined elsewhere in the collective agreement, nor was “gross EI benefit” defined in the Employment Insurance Act or the federal government’s online resources for EI. Absent any definition, the arbitrator relied on the meaning that it referred to an amount of money prior to any deductions or losses — meaning that the lawyer’s gross EI benefit was the amount she received before her city councillor earnings were deducted, or $547. The $40 she received from EI after the deduction from her other earnings was her net EI benefit, said the arbitrator.

The arbitrator also found that the employer’s position was backed up by the fact that another provision in the collective agreement for compassionate care leave provided a top-up of the difference between “payments received by the employee from employment insurance” and the employee’s regular salary. This more specific language indicated the intent of the parties and what “gross EI benefit” meant, the arbitrator said.

The arbitrator determined that the maternity leave top-up in the collective agreement entitled the lawyer to receive payments from LAS equal to the different between her EI benefits entitlement of $547 based only on her LAS salary, before the benefit was deducted to account for her outside earnings. The grievance was dismissed.

 Reference: Legal Aid Saskatchewan and CUPE, Local 1949. Allen Ponak — arbitrator. Amy Gibson for employer. Jake Zuk for union. Feb. 16, 2021. 2021 CarswellSask 89

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