Highlights of Noteworthy Decisions

Decision 175 20
R. Nairn
  • Experience rating (NEER) (retroactive adjustment)

In this appeal, the Board did not grant the employer SIEF relief until September 2015, about a year after the date of the final NEER calculation. The fact that SIEF relief was not granted until September 2015, was not due to any typographical or computer related problem nor was it the result of the Board's failure to process or act upon a decision. As such did not meet the criteria for retroactive adjustment under Board policy.

The employer's representative submitted that nonetheless there may be situations where the facts of a case are sufficiently exceptional that it would be manifestly unfair to apply Board policy and deny an employer a retroactive NEER adjustment. The Vice-Chair found however found that the employer did not demonstrate due diligence and as such there were no exceptional circumstances in this case.
In this decision, the Vice-Chair distinguished Decision No. 2113/15R2, noting that in that case the employer appealed an SIEF decision to the Tribunal within the statutory time limits. By the time the SIEF relief was granted by the Tribunal, the NEER window had closed and therefore the Board refused to retroactively adjust the NEER account to reflect the SIEF relief granted by the Tribunal. That decision concluded that when a SIEF decision is appealed to the Tribunal "within the applicable time limits" and SIEF relief is granted, that employer is entitled, as of right, to a retroactive NEER adjustment.
The Vice-Chair found that Decision No. 2113/15R2 is not to be interpreted to suggest that employers, whether at the Board or at the Tribunal, will always be entitled to retroactive adjustments of their NEER accounts when SIEF relief is granted even in cases where the employer has not exercised due diligence.
The employer's appeal was denied.