CUB 43608

IN THE MATTER of the Employment Insurance Act

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IN THE MATTER of a claim for benefits by
D'ARCY TRAVERS

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IN THE MATTER OF an appeal by the Claimant to an
Umpire from a decision by the Board of Referees given
at Mississauga, Ont. on June 19, 1997.

DECISION

Heard at Toronto Ont. on Nov. 4, 1998.

THE HONOURABLE JUSTICE MICHAEL G. BOLAN, UMPIRE:

This is an appeal from a Board of Referee's decision upholding a disqualification imposed on the Claimant for having lost his employment as a result of his own misconduct.

Section 30 (1) of the Employment Insurance Act S.C. 1996 c. 23 provides:

The Claimant was dismissed on November 15, 1996 from his employment as an engineer with Via Rail Canada Inc. by virtue of being under the influence of alcohol in the course of his employment. Although the breathalyzer test disclosed a relatively low blood alcohol reading - .045 PPM - the Claimant was in violation of Via Rail's policy of "zero tolerance" relating to alcohol consumption. The Claimant admitted to drinking alcohol on the premises.

An initial claim for benefits was established and the Commission, after finding that the Claimant had alcohol in his bloodstream while at work contrary to Via Rail's policy, imposed an indefinite disqualification effective November 15, 1996 pursuant to subsection 30 (1) of the E.I. Act - the Claimant's dismissal from his employment was by reason of his own misconduct.

The Claimant was reinstated as a locomotive engineer with Via Rail effective September 15, 1997, following a decision by an arbitrator at the Canadian Office of Railway Arbitration. In his decision, the arbitrator, Michael C. Picher stated: -

The arbitrator appreciates the spirit which motivates the Corporation's (Via Rail) policy of "zero tolerance"' in respect of violations of Rule G. On the other hand, the preponderant jurisprudence emerging from the boards of arbitration in Canada is that alcoholism is a disease, and must be recognized as such for the purposes of industrial relation's discipline. Indeed, a degree of tolerance and indeed reasonable accommodation, in respect of the conditions of persons who suffer from alcoholism, is an obligation which now befalls employers, unions, and arbitrators alike given the provisions of the Canadian Human Rights Code."

The majority of the Board of Referees concluded that the Claimant was dismissed from his employment due to his misconduct of having consumed alcohol and that this behaviour was sufficiently reckless as to be misconduct under the meaning of the Act.

The Claimant does not dispute that he was in violation of Via Rail's "zero tolerance" of alcohol while at the workplace. The Claimant contends that at the time in question, he was suffering from the disease of alcoholism and as such, did not have the ability as an alcoholic to judge that the amount of alcohol he had consumed would be in his bloodstream when he reported for work - that when he reported for work, he didn't realize he was under the influence of alcohol.

This becomes significant when the facts, which are not in dispute, are considered. The facts disclose that he had consumed an unknown quantity of alcohol the night before and reported for work at 6: 10 am bound for Sarnia via London. The Claimant was at the controls until London when a fellow engineer took over. The train hit a truck at a railway crossing 19 miles East of Sarnia, and breathalyzer tests were administered thereafter.

The first issue to determine is whether alcoholism is a disease. In his report dated June 9, 1997, Dr. Joseph C. McMillan, a physician certified by the American Medical Society on Alcoholism administered several substance abuse tests on the Claimant and concluded that he suffered from the Disease of Substance Dependency. The evidence disclosed that the substance abused was alcohol. The evidence satisfies me that at the time in question i.e. November 15, 1996, the Claimant suffered from the disease of alcoholism.

The Canadian Human Rights Commission stated in Policy 88-1 ( Exhibit 5) that: "A disability, as defined in the Act, includes previous dependence on alcohol or a drug, including illegal drugs. Because there is no consensus in the occupational health field as to what constitutes drug dependence, it is sufficient for a complainant merely to affirm drug dependency for a ground to be established."

The Claimant has confirmed his alcoholism and his dependency on alcohol and as such, he has established that he has grounds upon which he can claim he was not "reckless" by drinking the night before he went to work but that he was simply a victim of the disease of alcoholism.

I am mindful if the body of legal authorities set out in the Commission's brief presented to the Board of Referees on what constitutes misconduct. I adopt the definition of misconduct found in M. Brissette ( A - 1342-92 ) where the Federal Court of Appeal stated that for the conduct to constitute misconduct, it must be willful or deliberate or so reckless as to approach willfulness.

In CUB27175 the Umpire stated:

This is not a situation where the Claimant was "drinking on the job." He had consumed alcohol hours before he was tested. As an alcoholic, he was unable to appreciate that the extent to which he had consumed alcohol would show up in his blood system hours after the event.

In my view, the Board of Referees failed to consider that the Claimant at the time in question suffered from the disease of alcoholism and was unable to rationalize that he was in breach of Via Rail's zero tolerance policy when he reported for work on the morning of November 15, 1996.

I adopt the words of the Honourable Mark R. MacGuigan who stated in the Federal Court of Appeal judgment:

#A-381-85 " Dishonesty aside, the courts seem to be prepared to accept that the employees are human; that they may get ill and be unable to fulfill their obligations and they may make mistakes under pressure or through inexperience."

The Claimant is human and he suffered from an illness - the disease of alcoholism. As a human, he had frailties which exposed him to this disease. The Board of Referees failed to consider that the Claimant suffered from the disease of alcoholism. Had it done so, it would have concluded that because of his illness he was unable to appreciate that the alcohol he consumed the night before would show up in his bloodstream hours later.

I make this decision pursuant to the provisions of Section 17(b) of the Employment Insurance Act. This matter is remitted to the Commission to determine the period of benefits.

M.G. BOLAN

Heard at Toronto, Ont.
Nov. 4, 1998.