Summary of Issue: Employer Savings Account

Decision A-0619.05 Full Text of Decision A-0619.05

A seasonal worker maintained that the vacation pay was paid to him as he earned it, and that, pursuant to an agreement with the employer, it is not earnings under the Regulations, but savings. The vacation pay consisted of weekly deductions of 6% for savings, which were deposited in a savings account set up by the employer, who administered, controlled and managed it. The money accumulated was paid out to the claimant as a result of a separation from employment. The Court said the BOR erred in determining that the fact that the employer deposited the amounts in a regular savings account, rather than a trust account, was a mere technicality that in no way altered the nature of monies in question. The Court said that vacation pay, paid or payable by reason of a lay-off or separation from an employment, is to be allocated to a number of weeks that begins with the week of the lay-off or separation. This is the intention of subsection 36(9) "regardless of the nature of the earnings or the period in respect of which the earnings are purported to be paid or payable." The Court took into consideration the following decisions : Bryden (Supreme Court), Haycock (A-47-90), Brière (A-702-93), Leblanc (A-352-90), Liberati and Labonté (A-454-92) et Nield (A-46-90).