A worker who lost his job as a concrete finisher after he was involved in an accident involving a company vehicle, and refused to undergo a drug and alcohol test, is not entitled to receive employment insurance (EI) benefits, the Social Security Tribunal of Canada Appeal Division has ruled.
L.G. applied for EI benefits but was deemed ineligible by the Canada Employment Insurance Commission due to misconduct related to his refusal to undergo the test requested by his former employer.
The Tribunal’s General Division, upon reviewing L.G.’s case, supported the Commission’s decision, finding that L.G.’s dismissal was indeed a result of misconduct as defined under the Employment Insurance Act. This was primarily because L.G. declined the test after an accident, contravening the employer’s drug and alcohol policy, which he had previously acknowledged.
“The General Division found that the Claimant knew he would be dismissed if he refused the test. The Claimant does not dispute this. The Claimant was advised that refusing the test would result in his dismissal and he wilfully refused,” the Tribunal said.
Seeking further recourse, L.G. requested permission to appeal this decision to the Tribunal’s Appeal Division, arguing that the General Division made significant factual errors in its ruling, particularly in relation to the employer’s drug and alcohol policy requirements and other factors contributing to his dismissal.
However, the judge overseeing the appeal application concluded that there was no reasonable chance of success for the appeal to proceed.
The judge emphasized that the appeal did not demonstrate any substantial errors in the General Division’s decision-making process, including any procedural unfairness or legal misinterpretations.
The focus was on the employee’s conduct rather than the employer’s actions, with the judge noting established case law that misconduct analysis centers on the employee’s behavior.
“It is the behaviour of the employee that is at issue in a misconduct analysis, not the employer. Employees who are wrongfully dismissed have other remedies available to them,” the Tribunal said.
For more information, see LG v Canada Employment Insurance Commission, 2023 SST 1327 (CanLII).
