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Worker who refused drug, alcohol test after vehicle crash not entitled to EI benefits: Federal Court

by HR Law Canada

A worker in Alberta who was fired after refusing to undergo a drug and alcohol test following a vehicle accident is not entitled to receive Employment Insurance (EI) benefits, the Federal Court has ruled.

It upheld previous decisions by the Social Security Tribunal’s General Division and Appeal Division that the worker’s refusal constituted misconduct under the Employment Insurance Act.

L.G., a seasonal concrete finisher for Proform Concrete Services, was involved in a single-vehicle accident on Sept. 6, 2022. Following the incident, Proform invoked its “Fitness for Duty/Impairment-Free Workplace” policy, requesting L.G. to undergo a drug and alcohol test.

He refused, citing concerns over potential positive results due to his activities over the preceding weekend. This refusal led to his immediate termination under the company’s policy, which he had signed in May 2022.

L.G. applied for EI benefits in November 2022 but was denied by the Employment Insurance Commission, which cited his termination due to misconduct. His subsequent appeals to the General Division and Appeal Division were unsuccessful, prompting his application for judicial review.

The court’s ruling

The Federal Court’s decision centered on whether the Appeal Division’s refusal to grant leave to appeal was reasonable and whether there was a reasonable apprehension of bias by the Appeal Division’s member. Justice Southcott concluded that L.G.’s arguments did not establish any unreasonable aspects of the decision or demonstrate bias.

“The Appeal Division found that the General Division had applied the proper legal test, explained why it preferred certain evidence, and considered the Applicant’s submissions,” Justice Southcott wrote in his judgment. “The Applicant’s arguments did not have a reasonable chance of success.”

L.G. contended that his employer’s demand for a drug test was not justified under the policy terms and that previous incidents did not necessitate such tests. However, the court affirmed that the focus of misconduct analysis is on the employee’s conduct, not the employer’s actions.

Justice Southcott highlighted that “it is the conduct of the employee that is in question in a misconduct analysis, not the conduct of the employer,” referencing the Federal Court of Appeal’s decision in McNamara v. Canada (Attorney General).

The refusal to take the test was considered deliberate and willful, fulfilling the criteria for misconduct under the Employment Insurance Act.

Lessons from this case

  1. Clear Policies are Crucial: Ensure drug and alcohol policies are clearly communicated, consistently enforced, and include explicit consequences for non-compliance.
  2. Focus on Employee Conduct: In misconduct cases, the focus will be on the employee’s actions rather than the employer’s policies or their enforcement.
  3. Documentation and Evidence: Maintain thorough documentation of incidents and employee agreements to support decisions in potential disputes.

For more information, see Gould v. Canada (Attorney General), 2024 FC 877 (CanLII).

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