A Record of Employment (ROE) is a document that sets out an employee’s term of employment and earnings history with an employer. It is the primary documentation required when a person applies for Employment Insurance benefits following a loss of income. Every employer has an obligation to issue an ROE within 5 days after the end of the pay period in which the employee’s earnings are interrupted.
Such an event occurs when an insured person is laid off or separated, by resignation or by termination and has a period of 7 consecutive days during which no work is done and which there are no earnings.
In the real world, this means that if the employee is terminated on November 1, and the pay period ends on November 5, then the ROE must be issued no later 5 days following November 5, that is, by November 10.
Sickness & Leaves
The employer must also issue the ROE within 5 days after the employee takes an approved leave of absence from employment. There is no grace period in this instance.
Such persons must receive their ROE within 5 days following the end of the relevant pay period in which there has been an interruption of earnings.
The employer must issue the electronic ROE to Service Canada within the relevant time period. The company must provide a copy of the ROE to the employee only if it is still using paper records of the ROE.
Employees may register an account online with My Service Canada to view their ROE.
Issues as to Accuracy of the ROE
If there is a disagreement as to the contents of the ROE, the employee may provide their views on the website by submitting an Application for Reconsideration for EI.
Consequences of Delay in Providing ROE
Employers may be fined up to $2,000 for the failure to provide the ROE on a timely basis. There is also a potential of 6 months imprisonment, which has never been used.
There may be civil consequences as well. One case awarded the employee the sum of $1,000 for a 5-month delay by the employer in providing the ROE.
The Ontario Court of Appeal in a second case agreed that the total award of aggravated damages of $60,000 was proper, one reason for which was the delay in issuing the ROE. The Court made these comments:
In the immediate lead-up to her dismissal, Ms. Strudwick was confronted in front of an estimated 13 other employees, yelled at and called a “goddamned fool”. She was then informed of her termination for a senseless reason. Paperwork had been prepared by the company that was designed to deprive her of various legal rights. When she would not sign, she was not given money the company then owed her. She was further humiliated by having to gather her belongings and leave under the stares of co-workers.
The abuse did not cease after termination. Government intervention was needed before Applied Consumer gave Ms. Strudwick the pay it owed her at the time of dismissal. Then the company tendered a record of employment that delayed Ms. Strudwick’s entitlement to receive employment insurance.
This conduct resulted in lasting psychological harm to Ms. Strudwick. As previously noted, she was diagnosed with an adjustment disorder with mixed anxiety and depressed mood requiring prolonged weekly cognitive behavioural therapy.
Taking all of this abuse into account, I would award Ms. Strudwick $70,000 for aggravated damages.
Although not directly related to the ROE issue, one case found that the employer’s conduct in appealing the EI determination was unfair conduct and worthy of a finding to increase the notice period, as then was the law. Today, this would allow for an award of aggravated damages. The trial judge in this case stated as follows:
To add insult to injury, Bernie Eastman appealed Durante’s entitlement to employment insurance. A hearing date was scheduled but postponed by Bernie Eastman. Durante attempted to reschedule the hearing but gave up in frustration.
Durante paid into the employment insurance fund throughout his working career. He was fired from his job and was entitled to collect from the insurance fund. What business was it of Zesta’s that the government decided that Durante was entitled to receive employment insurance?
The facts of this case support adding an additional four months’ notice for the manner in which Zesta terminated Durante’s career. Zesta’s treatment of Durante was shameful.
Employers’ Take Away
The ROE is an easy document to create and its issuance should not be delayed. When completed on time and in good faith, it should not lead to any issues.
The ROE is important to allow for the prompt processing of employment insurance claims. The employee may still file for EI without the ROE but normally this is not an issue.
Get Advice Before You Act
The creation and submission of an ROE is a simple process and should not present any complications, so long as the employer fulfills its obligations with respect to timing. The employer should be careful to be fair in its participation in the process, so as not to cause a former employee unnecessary complications when applying for EI benefits.
If you have questions about this issue or any employment issue, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise employees and employers on issues in the workplace. Contact us online or by phone at 416-364-9599 to schedule a consultation.
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