DA v Canada Employment Insurance Commission

DA v Canada Employment Insurance Commission Collection Employment Insurance (EI) Decision date 2020-02-19 Neutral citation 2020 SST 232 Reference number GE-20-354 Member Solange Losier Division General Division Decision Appeal dismissed Related decisions SST - DA v Canada Employment Insurance Commission - 2020 SST 1043 - 2020-05-26 - General Division SST - DA v Canada Employment Insurance Commission - 2020 SST 227 - 2020-03-16 - Appeal Division SST - DA v Canada Employment Insurance Commission - 2020 SST 939 - 2020-10-30 - Appeal Division SST - DA v Canada Employment Insurance Commission - 2020 SST 940 - 2020-10-14 - General Division Decision Content On this page Decision Overview The claimant did not attend the hearing Issue Analysis Conclusion Decision [1] The Commission has proven that the Claimant lost his job because of misconduct. This means that the Claimant is disqualified from being paid employment insurance benefits.Footnote 1 Overview [2] The Claimant worked as a subway operator. The employer dismissed the Claimant because a drug test revealed that he had above acceptable limits for marijuana in his system at work. The Commission decided that the Claimant was not entitled to receive employment insurance (EI) benefits because he lost his employment due to his own misconduct. The Claimant disagrees because the employer did not follow their policy for drug testing, he had taken marijuana twelve hours prior to his shift, he was not impaired and has a medical prescription for marijuana. [3] The Commission accepted the employer’s reason for the dismissal. They decided that the Claimant lost his job because of misconduct, and disqualified him from being paid employment EI benefits. The claimant did not attend the hearing [4] The Claimant did not attend the in-person hearing. A hearing is allowed to go ahead without the Claimant was given the notice of the hearing.Footnote 2 I am satisfied that the Claimant received the notice of hearing because it was emailed to him on February 6, 2020 by the Tribunal. The email address was correctly inputted based on the information provided on his notice of appeal forms. The related file documents were also previously sent to his email on February 4, 2020. There is no indication in the file of any returned emails or undeliverable mail. Therefore, the hearing proceeded on the date that was scheduled, but without the Claimant. Issue [5] Did the Claimant lose his job because of misconduct? To determine this, I will first decide the reason why the Claimant lost his job. Analysis Why did the Claimant lose his job? [6] The Claimant lost his job on November 4, 2019 because he tested above acceptable levels of marijuana at work on October 8, 2019. This breached the employer’s random drug and alcohol testing policy. The employer considered him non-compliant. This is consistent with the record of employment and termination letter which says that he dismissed for non-compliance for marijuana levels (GD3-23; GD3-28 to GD3-29). Is the reason for the Claimant’s dismissal misconduct under the law? [7] The reason is considered misconduct under the law. [8] To be misconduct under the law, the conduct has to be willful. This means that the conduct was conscious, deliberate, or intentional.Footnote 3 Misconduct also includes conduct that is so reckless that it approaches willfulness.Footnote 4 The Claimant does not have to have a wrongful intent for his behavior to be misconduct under the law.Footnote 5 [9] There is misconduct if the Claimant knew or ought to have known that his conduct could impair the performance of the Claimant’s duties owed to his employer and, as a result, that dismissal was a real possibility.Footnote 6 [10] The Commission has to prove that it is more likely than notFootnote 7 that the Claimant lost his job because of misconduct.Footnote 8 [11] I find that the Commission has proven that there was misconduct, because he was fired for exceeding the acceptable marijuana levels in his system at work. The oral swab test confirmed that he was positive for marijuana and he does not deny that he consumed marijuana twelve hours prior to his work shift. The Claimant said that the employer’s fit for duty levels of marijuana needed to be under 10 ng/ml and he confirmed that his level was 12 ng/ml, which was 2 points above the acceptable levels (GD3-30). This breached the employer’s random drug and alcohol testing policy and put the safety of others at risk because he worked as a subway operator. [12] I find that the Claimant knew or ought to have known he would be dismissed for his conduct. The claimant acknowledged in his application that he was aware of the employer’s policy (GD3-11). The Claimant’s statement to the Commission confirms that he knew he would risk losing his job by not following their policy (GD3-30). The termination letter says that the employer was previously aware of the Claimant’s marijuana use due to an inadvertent disclosure and that he was already aware of the consequences of not adhering to the policy (GD3-28 to GD3-29). [13] The Claimant says that the employer should have done an impairment test according to their policy, but that they only did an oral swab test. I was not persuaded by this because he provided no supporting evidence or a copy of the policy which says that an impairment test must also be done. The Commission found the employer’s “random drug and alcohol testing” online. It does not say that an impairment test must be done with an oral swab test, but confirms the acceptable levels of marijuana at work (GD3-31 to GD3-32). [14] The Claimant says that he was not impaired at work because marijuana does not affect him in the same manner. I was not persuaded by this because he provided no supporting or medical evidence to show that he was not affected by the marijuana in his system. The Commission attempted to call the company who conducted the test, but could not obtain any information for confidentiality reasons (GD3-39). [15] The Claimant says that there was a human rights violation because he is medically prescribed marijuana. I was not persuaded by this because there is no medical evidence in the file to support his statement. The Claimant characterized himself as a recreational user in his statements to the Commission (GD3-26; GD3-30). The termination letter states that he previously saw an occupational health and wellbeing agent and was sent to a drug counsellor. They determined that he was a recreational user and he could continue operating his duties as a subway operator (GD3-28 to GD3-29). While it is possible that he is a recreational user and medically prescribed marijuana, there was insufficient evidence to prove it, or that there was human rights violation by the employer on the basis of disability. [16] The courts have considered this issue before. Misconduct has been found where a voluntary drug test revealed the presence of drugs in the claimant’s blood. The claimant was fired because the collective agreement required the success of the drug test to continue working.Footnote 9 Similarly, the Claimant in this case tested above acceptable limits for marijuana at work and he needed to be fit for duty in order to perform his job as a subway operator. [17] It is an error in law to conclude that the conduct was not wilful when the consumption of drugs was voluntary. It was voluntary in the sense that their acts were conscious and that they were aware of the effects of that consumption and the consequences which could or would result. The use of illegal drugs was deemed to be sufficiently serious and of such scope that they could normally foresee that it would be likely to result in their dismissal.Footnote 10 [18] For these reasons, I am satisfied that the Claimant’s conduct was wilful, deliberate and conscious. He voluntarily consumed marijuana twelve hours prior to his shift and tested above acceptable limits for marijuana at work. He did not comply with the employer’s policy at work, even though he was aware of the policy and consequences. Conclusion [19] The appeal is dismissed. This means that the Claimant is disqualified from being paid EI benefits. Heard on: February 18, 2020 Method of proceeding: In person Appearances: None Footnotes Footnote 1 Section 30 of the Employment Insurance Act disqualifies claimants who lose their employment because of misconduct from being paid benefits. Footnote 2 Section 12 of the Social Security Tribunal Regulations. Footnote 3 Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 4 McKay-Eden v Her Majesty the Queen, A-402-96. Footnote 5 Attorney General of Canada v Secours, A-352-94. Footnote 6 Mishibinijima v Canada (Attorney General), 2007 FCA 36. Footnote 7 The Commission has to prove this on a balance of probabilities which means it is more likely than not. Footnote 8 The Minister of Employment and Immigration v Bartone, A-369-88. Footnote 9 Canada (Attorney General) v McNamara, 2007 FCA 107. Footnote 10 (Canada (Attorney General) v Wasylka, 2004 FCA 219.