A frequent complaint heard in the practice of an Ontario employer lawyer is that the suddenly unemployed employee has not yet been provided with his or her Record of Employment, the "ROE." Many will ask, "isn't my employer required to give me my record of employment within five days so that I can apply for employment insurance (EI)?" The short answer is that employers are no longer legally required to provide employees with a paper copy of their ROE; a fact often leading to confusion and frustration.
The Legal Requirement to Provide Employees with a Record of Employment
Pursuant to section 19 of the Employment Insurance Regulations, SOR/96-332, a regulation made pursuant to the EI Act, employers are required to either provide the employee with a paper copy of his or her Record of Employment within five days of any "interruption of earnings" or, if the ROE is going to filed electronically with the government, then the employer has until the later of:
- five days after the end of the pay period during which the first day of the employee’s interruption of earnings fell, and
- if there are 13 or fewer pay periods per year under the employer’s pay cycle, 15 days after the first day of the interruption of earnings.
What the law says is that if the Record of Employment is completed electronically, it must be filed with the Canada Employment Insurance Commission by the above-established dates and kept on file at the employer. There is no legal obligation to provide the employee with a copy if the ROE is electronically filed; a fact that often leads to the aforementioned frustration and confusion.
Where to Find the ROE
So where does a suddenly unemployed person find his or her ROE? On your "My Service Canada Account." Those that do not have a My Service Canada Account ("MSCA") will have to register for a Personal Access Code from Service Canada. This process may take some time, so it may be prudent to register for an account before actually needing the services of MSCA.
Takeaways for Employees with Labour Pains
The takeaway for suddenly unemployed employees is that it is possible that your employer has actually filed your Record of Employment, meaning that you are eligible for EI, without telling you. Before calling an employment lawyer to see what can be done, it may be prudent to first speak to your employer to see if the ROE was or will be electronically filed. If it will be electronically filed, then simply apply for EI without the paper copy. Access the electronic copy via the internet.
Also, you do not need your ROE before you can apply for EI. In fact, your employer does not need to even submit the ROE before you can apply. Do not wait for your ROE to apply for EI. Apply and, if necessary, let Service Canada assist with respect to obtaining the ROE from your employer.
Still have questions? Think you may have been wrongfully dismissed? I can help.
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Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He has also been a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.