What is a Record of Employment?
By: Ben J. Hahn
Tags: Ontario, Law, Record Of Employment, Employment

What is a Record of Employment?

Don’t let the name scare you. A Record of Employment isn’t a centralized document accessible to employers detailing your past work performance or discipline history. It’s just the name of a form used by Service Canada to assess your entitlement to Employment Insurance Benefits. Ben J. Hahn Jun 9, 2019·4 min read

Record of Employment

The “Record of Employment” or “ROE” is a form created under the Employment Insurance Act to simplify the calculation of an applicant’s EI benefits.

When an employee’s employment ends (and in certain other circumstances), the employer is obligated to file an ROE with The Canada Employment Insurance Commission. If the employee applies for EI benefits, the Commission will refer to the ROE to calculate what benefits are owed.

The ROE does not contain a detailed description of your work performance or discipline history, and it’s not accessible to other potential employers. It is principally a record of your wages earned over the last several pay periods. Specifically, the Commission is looking for your “insurable earnings” as defined under the Act. A more accurate name for the form might be “Record of Insurable Earnings.”

If the employer is uncooperative or unavailable to provide an ROE, the Commission has a process for determining your application on the basis of information you provide about your earnings.

Comments and Codes

There is a box for “comments” from the employer, but the Commission discourages it from being used because it upsets their automated process for considering EI benefits applications.

There is also a box for the employer to indicate the “reason for issuing” the ROE by using one of the Commissions’s predefined letter-codes (e.g. “A — Shortage of Work,” “E — Quit,” or “M — Dismissal”).

Quitting and Being Fired

The code chosen by the employer can sometimes be a source of concern for dismissed employees because an employee who quits or who is fired for misconduct may be disqualified from EI benefits.

But the code itself isn’t determinative of whether an employee can obtain EI benefits.

For instance, an employee who is dismissed for poor performance can still obtain EI benefits. “Misconduct” will only disqualify an employee if it is “wilful” in the sense of being “ conscious, deliberate, or intentional.” Mere carelessness won’t suffice. And the employer’s own subjective perception of the situation won’t direct the outcome of the EI benefits application.

Similarly, a person can quit their job and still receive EI benefits if there was “ no reasonable alternative to leaving” the job. The Act also lists a number of specific circumstances which qualify. Some relate to employer wrongdoing, but others have nothing to do with the employer.

In all instances, the Commission decides your application for EI benefits, not your employer. The Commission has to get information from you about the circumstances of your end of employment.

The Process

Typically, if the application raises any uncertainty, the Commission will gather documents and information from both you and your former employer in order to decide the claim. If new information arises, the Commission can reconsider, rescind, or amend its decision. If you disagree with a decision, you can ask for it to be formally reconsidered. If you still disagree with the Commission’s reconsideration, you can appeal to the Social Security Tribunal (General Division) with the possibility of further appeal to the Appeal Division.

An EI benefits claim is a fundamentally separate process from any threatened or ongoing legal disputes with the employer, even when there appears to be some spillover into the EI claims process.

For instance, in the broader employment law context, employees sometimes allege “ constructive dismissal.” This is essentially an allegation that the employer has done something to make the employee’s continued employment objectively intolerable. Employers tend to deny wrongdoing, and will say the employee simply quit.

Such claims are usually fought in court, but the competing characterizations of the end of employment may creep into the ROE “quit” code. Ultimately, the Commission and Tribunal are not concerned with determining fault between employer and employee by resolving a constructive dismissal dispute. Their concern is only to decide the application for EI benefits with reference to the specific parameters of the Act. External disputes with the employer aren’t typically an impediment.

Similarly, an employer might allege “ just cause” for terminating the employee. This legal concept is also foreign to the Employment Insurance Act. As such, an assertion of “just cause” will have little bearing upon an employee’s EI benefits claim. The higher “wilful” misconduct standard applies. And dismissal for mere lack of performance is irrelevant to the EI benefits application.