Employment Insurance (EI)

Persons in attendance

The Appellant, M. C., attended the hearing.

Decision

[1] The Tribunal finds that the Appellant lost his employment because of his own misconduct, pursuant to sections 29 and 30 of the Employment Insurance Act (the Act).

[1] The Tribunal finds that the Appellant lost his employment because of his own misconduct, pursuant to sections 29 and 30 of the Employment Insurance Act (the Act).

Introduction

[2] The Appellant filed an initial Employment Insurance benefit claim effective November 3, 2013 (GD3-2 to GD3-19).

[3] The employer, Prince déménagement, terminated the Appellant’s employment on August 13, 2013, because he refused to undergo an alcohol test in the United States. The Canada Employment Insurance Commission (the Commission) found that the Appellant had ceased working at Prince déménagement because of his own misconduct within the meaning of sections 29 and 30 of the Act. The Commission therefore imposed an indeterminate disqualification effective August 25, 2013 (GD3-40).

[4] The Appellant filed a request for reconsideration of the Commission’s decision of November 21, 2013. On January 10, 2014, the Commission informed the Appellant that it was upholding its initial ruling of misconduct (GD3-45).

[5] The Appellant is appealing the Commission’s revised decision to the Tribunal, on the basis that the decision is erroneous in fact and in law (GD2-1 to GD2-6).

Type of hearing

[6] The hearing was held by way of personal appearance of the parties for the reasons set out in the notice of hearing dated March 20, 2014.

Issue

[7] The Tribunal must determine whether or not the Appellant lost his employment because of his own misconduct, pursuant to sections 29 and 30 of the Act.

Applicable law

[1] Under subsection 30(1) of the Act, a claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause.

[2] The Federal Court of Appeal (FCA) has defined misconduct as follows: “In order to constitute misconduct the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance” (Canada (Attorney General) v. Tucker 1986 FCA 381).

[3] “There will be misconduct where the claimant knew or ought to have known that his conduct was such as to impair the performance of the duties owed to his employer and that, as a result, dismissal was a real possibility” (Canada (Attorney General) v. Mishibinijima 2007 FCA 85).

[4] The misconduct must be committed by the claimant while employed by the employer, and must constitute a breach of a duty that is express or implied in the employment contract. It is not necessary that the misconduct be committed at work, in the work place or in the course of the employment relationship with the employer. There must be a causal relationship between the misconduct and the loss of employment. The misconduct must cause the loss of employment and must be an operative cause (Brissette A-1342-92).

[5] The employer and the Commission have the onus of proving on a balance of probabilities that the claimant lost his employment due to his misconduct (Canada (Attorney General) v. Larivée 2007 FCA 312).

[6] Under subsection 49(2) of the Act, if the evidence on each side of the issue is equally balanced, the Commission gives the benefit of the doubt to the claimant.

[7] The role of the Tribunal is to determine not whether the dismissal or the penalty was justified, but rather whether the claimant’s conduct amounted to misconduct within the meaning of the Act (Marion 2002 FCA 185).

[8] Determining whether dismissing the claimant was a proper sanction is an error. The Tribunal must determine whether the misconduct it found was the real cause of the claimant’s dismissal (Macdonald A-152-96).

Evidence

[9] The Appellant filed an initial claim for Employment Insurance benefits effective November 3, 2013 (GD3-2 to GD3-19).

[10] The employer, Prince déménagement, terminated the Appellant’s employment on August 13, 2013, because he refused to undergo an alcohol test in the United States. The Commission determined that the Appellant had ceased working at Prince déménagement because of his own misconduct within the meaning of sections 29 and 30 of the Act. The Commission therefore imposed an indeterminate disqualification effective August 25, 2013 (GD3-40).

[11] The Appellant filed a request for reconsideration of the Commission’s decision of November 21, 2013. On January 10, 2014, the Commission informed the Appellant that it was upholding its initial ruling of misconduct (GD3-45).

[12] The Appellant is appealing the Commission’s revised decision on the basis that the decision is erroneous in fact and in law (GD2-1 to GD2-6).

[13] The Appellant states that he refused to undergo an alcohol test because he felt his rights were being violated. He had never been required to undergo an alcohol test in the United States in the 30-year span of his career. He was asked to undergo the test in the morning and he had not consumed alcohol. He states that, in Canada, he would not be asked to undergo an alcohol test, so he refused. He agreed to the drug test. Upon his return to Canada, he told his employer that he would undergo the alcohol test, but his employer dismissed him, saying that he should have agreed to do the test (GD3-21). The Appellant confirms that he was aware that he would lose his job if he did not do the drug test, but not necessarily the alcohol test. He denies that his employer had spoken to him before about the alcohol test. He also denies taking a four-hour training session. Having never had to take this test, and having never had the employer’s confirmation, he refused, in the belief that his rights were being violated (GD3-23).

[14] The employer states that the Appellant refused to undergo an alcohol test that is mandatory for all drivers in the United States. The Appellant was obliged to submit to the test; otherwise, he would lose his job. The selection is random, and the test is carried out by an independent firm. The Appellant submitted to the drug test in Detroit, but he refused to do the alcohol test. The Appellant had received four hours of training at the time he was hired, and he was told about the obligation of submitting to the test. He knew that he would be dismissed if he did not submit to the tests requested. Road safety makes these tests necessary (GD3-22).

[15] The evidence shows that the Appellant signed the company’s policy [translation] “Drugs and Alcohol – Health Problems and Impacts” on January 16, 2013 (GD3-37).

Submissions of the parties

[16] The claimant argued that:

1. a) A few months before the incident, he had had a few problems when he received a ticket under U.S. law. Bombarded with advertisements by lawyers discouraging people to undergo breath alcohol tests, he was reticent. He had never had a drug or alcohol test in the United States. In the 30 years of his career as a driver, he had always done these tests in Canada. He was wary of U.S. laws. At his employer’s request, he went to take the drug test, but he was reticent about doing the alcohol test. He was worried about being found guilty in another country in the event the device proved to be defective. He contacted his employer, and once he managed to speak with his supervisor two hours later, it was confirmed to him that he had to do the test or he would lose his job. He therefore agreed, but because the clinic was about to close, he did not have time to take the test.
2. b) He was chosen at random, and when he arrived at the clinic, he did not feel comfortable. He preferred to call his boss before undergoing the test. Unfortunately, he was able to reach his employer only two hours later.
3. c) Since that incident, he has spoken with two trucking companies that confirmed that it is very rare for alcohol tests to be required in the United States. He has never refused to do a test in Canada in his 30 year career. In his view, it was not normal for him to be asked to undergo an alcohol test in the United States.
4. d) He confirms that he signed the contract, but he did not think that the tests would be conducted in the United States because he had never had any outside Canada.
5. e) He has never consumed alcohol while driving. He is well aware of the zero tolerance policy for trucks.
6. f) The week after his dismissal, he found a job elsewhere. However, he is not working at the moment because he is on sick leave.

[17] The Respondent argued that:

1. a) Subsection 30(2) of the Act provides for the imposition of an indeterminate disqualification if it is established that the claimant lost his employment because of his own misconduct. To constitute misconduct within the meaning of section 30 of the Act, the act complained of must have been voluntary or wilful or of such a careless or negligent nature that it appears to have been committed deliberately. There must also be a causal relationship between the misconduct and the dismissal.
2. b) Misconduct has been established beyond any reasonable doubt. The claimant confirms in his claim for benefits that the employer has a policy about drug and alcohol consumption and that he was aware. He says that he was informed orally when he was hired and he confirmed that he had read the document [translation] “Appendix A – Drugs and Alcohol – Health Problems and Impacts” and that he agreed to participate in requested or recommended tests. He was informed that he would automatically lose his job if he did not do so. The claimant confirmed all of this by signing the document on January 16, 2013.
3. c) His refusal to undergo the alcohol test amounted to misconduct within the meaning of the Act because he had agreed, at the time of his hiring, to submit to the alcohol or drug tests requested of him. Furthermore, he knew that his refusal would automatically lead to dismissal. This was a request by the U.S. government, and the claimant should have understood that it was a serious order that needed to be followed. He had been advised by his employer, before leaving Canada, that he had no choice but to submit to the tests.
4. d) The claimant confirmed to the Commission that he had not consumed alcohol. Submitting to the tests requested by the U.S. government should therefore not have been a problem, and the claimant would not have been dismissed by the company Prince déménagement.
5. e) The claimant is a long-distance truck driver. The employer has a drug and alcohol policy for reasons of safety not only for its employees but for the general population. The claimant is aware of the policy and confirms that he was informed at the time he was hired. He did not follow the instructions of the U.S. government, and his employer had told him that he had to submit to the tests. The claimant’s refusal to undergo the alcohol test is directly attributable to his dismissal. The claimant had to expect that his employer would undoubtedly terminate his employment.

Analysis

[18] Section 30 of the Act states that a claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct. The FCA has established that the employer and the Commission have the onus of proving on a balance of probabilities that the claimant lost his employment due to his misconduct (Canada (Attorney General) v. Larivée 2007 FCA 312).

[19] To establish misconduct, the onus is on the employer and the Commission to show that the Appellant knew or ought or have known that his behaviour was reprehensible and inconsistent with his employment. In this case, the Tribunal is of the opinion that the employer and the Commission met the onus on them with the evidence presented.

[20] The evidence in the file shows that the Appellant knew about the employer’s drug and alcohol testing policy and the consequences of not submitting to the tests. The Tribunal relies on the FCA, which stated that there will be misconduct where the claimant knew or ought to have known that his conduct was such as to impair the performance of the duties owed to his employer (Canada (Attorney General) v. Mishibinijima 2007 FCA 85). From the evidence in the appeal docket, it can be concluded that the claimant knew or ought to have known that his conduct was such as to impair the performance of the duties owed to his employer. In fact, at the hearing, he confirmed that he had read and signed the company’s policy on drug and alcohol testing. Moreover, when he was selected at random for tests in Detroit, he contacted his supervisor, who confirmed that, in light of the zero tolerance policy, he would lose his employment if he did not submit to the test.

[21] For the Tribunal to conclude that there was misconduct, it must have relevant facts and sufficiently detailed evidence, first, for it to be able to know how the employee behaved and, second, to decide whether such behaviour was reprehensible (Meunier A-130-96; Joseph A 636 85). The evidence filed by the employer clearly allows us to conclude that the Appellant knew that his behaviour could lead to his dismissal.

[22] The Tribunal relies on the FCA, which found that there must be a causal relationship between the misconduct and the dismissal. The misconduct must cause the loss of employment and must be an operative cause (Brissette A-1342-92). The facts in this case show that the dismissal was a direct consequence of the Appellant’s refusal to submit to an alcohol test (Brissette A-1342-92).

[23] The Tribunal relies on the FCA, which found that, for there to be a ruling of misconduct under the Act, the act complained of must be wilful or deliberate or so reckless as to approach wilfulness. Misconduct therefore involves reprehensible, wilful behaviour and, by definition, wilfulness implies an obstinate determination to follow one’s own will (Canada (Attorney General) v. Tucker 1986 FCA 381). In light of the importance of road safety for a truck driver, the Appellant’s experience as a driver, and the company’s policy on drug and alcohol testing, the Tribunal finds that the Appellant’s behaviour was wilful.

[24] In cases involving misconduct, the FCA has stated that the Tribunal’s role is not to determine whether the dismissal or the penalty was justified (Fakhari A-732-95) but rather whether the claimant’s conduct amounted to misconduct within the meaning of the Act (Marion 2002 FCA 185). In fact, the evidence clearly shows that the Appellant’s conduct led to his dismissal. His behaviour was wilful or deliberate or so reckless as to approach wilfulness, as set out in Tucker.

[25] The Tribunal finds that the Appellant lost his employment because of his own misconduct, pursuant to sections 29 and 30 of the Act.

Conclusion

[26] The appeal is dismissed.