IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
PAUL POTVIN
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given at
Sudbury, Ontario, on October 2, 1997
DECISION
James A. Jerome, Umpire
This is an appeal by the claimant from a decision of the Board of Referees which held he was not entitled to benefits as he lost his employment by reason of his own misconduct.
Mr. Potvin applied for Unemployment Insurance benefits on January 14, 1997, indicating that he had been dismissed from his employment. The employer advised the Commission that the claimant had been caught stealing prescription drugs from a co-worker's lunch pail and the incident had been reported by the co-worker. At first the claimant denied taking anything but then reluctantly admitted to the theft. The employer further stated that the claimant did not have permission to go into the lunch pail.
The claimant's explanation was that just prior to the incident, he had been in a drug rehabilitation programme where he had received treatment for abuse of prescription drugs and had only recently returned to work on a conditional letter of re-employment. On the day in question, the claimant had a headache and had been given permission by a co-worker to go into the co-worker's lunch pail and get some Advil. When Mr. Potvin went into the lunch pail he saw prescription drugs (Tylenol 3) and forgot everything he had learned in his drug rehabilitation programme. He took the prescription drugs for personal use.
Based on this information, the Commission determined that the claimant was not entitled to benefits as he lost his employment by reason of his own misconduct. Mr. Potvin appealed to a Board of Referees, the majority of which dismissed his appeal stating its reasons as follows:
The claimant and his representative admitted that the claimant had taken some tylenol 3 from the lunch pail of a co-worker which according to the majority of the Board constitutes an offence.
Later the claimant was dismissed due to this offence. In the weight of these facts the Board concludes that the claimant has committed an offence which constitutes misconduct. Regardless of the circumstances the claimant could not justify his action and the Majority of the Board finds that using drugs at work is a serious offence.
Therefore the Board concludes that the claimant lost his employment due to his own misconduct.
The dissenting Board member would have allowed the claimant's appeal for the following reasons:
His [the claimant's] statement to the Commission contradicts the statements made by the company and the Commission. The offence is a serious one and cannot be overlooked but a drug and alcohol addiction is an illness and is so recognized by the medical authorities.
The Commission recognizes this by granting sick benefits to the claimant by letter (exh 13). The company recognized that earlier on and should have been more compassionate and helped him get over his illness. The claimant had admitted to the offence and as we all recognize that his illness is not an easy one to recover from. I consider that the misconduct is not one that would present [sic] him from receiving benefits although it is considered a discharge offence by the company. I would therefore consider the offence not misconduct under the act and would grant the claimant benefits and allow the claim.
Pursuant to sections 29 and 30 of the Employment Insurance Act a claimant who loses his employment by reason of his own misconduct is subject to a disqualification from benefits. Although the term "misconduct" is not defined in the legislation, the jurisprudence has established that it requires a mental element of wilfulness or conduct so reckless as to approach wilfulness. Whether the conduct of an employee which results in the loss of his employment constitutes "misconduct" will depend largely on the circumstances of each individual case. The onus lies on either the Commission or the employer to establish misconduct and there must be clear, strong and unequivocal evidence that a claimant was dismissed for misconduct before the Board of Referees can make such a finding. If there is any doubt as to the alleged misconduct then it has not been proven that a claimant lost his employment for that reason.
Furthermore, the fact an employer has dismissed an employee for what it believes to be good cause does not necessarily mean that misconduct for the purposes of the Employment Insurance Act has been established. Being dismissed for cause is not necessarily the same as being dismissed for misconduct.
Here, I agree with the dissenting Board member that the claimant's drug addiction was serious and cannot simply be overlooked in making a determination as to whether he lost his employment by reason of misconduct. Indeed, as I stated at the hearing of this matter, theft of such a small amount of medication, even if viewed by the employer as cause for dismissal, is scarcely serious enough to warrant disentitlement to benefits because of misconduct.
For these reasons, the Board's decision is set aside and the claimant's appeal is allowed.
James A. Jerome
Umpire
OTTAWA, Ontario
November 19, 1998