When to issue an ROE?

Among the many forms employers need to be aware of and complete, the Record of Employment (“ROE”) is high on the list. Employees need an ROE to access Employment Insurance benefits, and an ROE must be issued any time an employee has had or is anticipated to have seven consecutive calendar days with no insurable earnings. Many employees and employers are familiar with ROEs being issued when employment has ended, but ROEs are also issued during the course of continuing employment, for example, when an employee goes on a leave of absence or is temporarily laid off.

What is included in an ROE?

An ROE includes information about the employee, such as the reason for issuing the ROE, whether there is an expected date of recall or return to work, and what their insurable earnings have been over the last 52 weeks.

ROE deadline: How long does an employer have to issue an ROE?

ROEs can be issued electronically, through Service Canada, or in paper copy. When an ROE is completed on paper, a copy must be provided to the employee. Where the ROE is issued electronically, the employee can access it through their own Service Canada portal. If an employer issues ROEs on paper, they must issue the ROE within five calendar days of the first day of an interruption of earnings or of the day the employer becomes aware of an interruption of earnings. If they are issuing electronically, the employer has up to five calendar days following the end of the pay period in which the interruption of earnings occurs to issue the ROE.

What happens when there is a dispute about the reason for the issuance of an ROE?

Sometimes, there can be disputes as to why there was an interruption in earnings. This could happen as a result of a claim for constructive dismissal, where the employer’s position is that the employee quit, but the employee takes the position that they have effectively been terminated. Disputes can also arise where the employer states that the employee was terminated for just cause. Under these circumstances, an agent from Service Canada usually speaks with both the employer and employee to gather more information and determine whether the employee may access Employment Insurance.

What happens if an employer does not issue an ROE/penalties if an ROE is not issued?

An employer who fails to issue an ROE within the required timeline could be issued a fine under the Employment Insurance Act (“EI Act”) of up to $2,000, or face imprisonment of a term up to six months. However, in addition to thinking about the consequences under the EI Act, employers should also be aware of possible civil claims for aggravated or punitive damages. There have been multiple decisions where the courts have taken an employer’s failure to issue ROE correctly and within the required timeline into account when awarding damages to the employee. With this context, it is important for employers to take the time to make sure they are completing ROEs correctly. Where an employer is facing a more complex situation or they have questions about ROE, they should seek advice from an employment lawyer.

By Nicole Simes from Simes Law