CUB 53041

Hon. David G. Riche

The issue in this case is whether or not the claimant lost his employment due to his own misconduct. The Board allowed the appeal and the Commission has appealed to the Umpire.

The claimant had been fired for smoking a drug outside the plant where he worked. He stated that other employees had been caught doing the same thing but had been given two warnings before dismissal. He said he had not been warned at all but had been fired on the spot. Before me he stated that he believed it was discrimination against him because he was a Newfoundlander. He had worked there for some eight and a half years and this was his first infraction. The Board also found that he was at the finish of his shift on his way out, and he was not going back to work.

The majority of the Board found that there was no copy of the company policy in the docket nor any indication of copies of same given to employees. They stated that the incident took place outside the plant and he was finished his shift. Based on the apparent tolerance of the employer the Board found that he did not have the element of wilfulness or recklessness present to define misconduct under the E.I. Act. The Board found that while the employer was in his right to terminate employees for such illegal activity, the Board found that the appellant would not have jeopardized his employment if clear and consistent discipline had occurred previously, and his state of mind was such that he believed that he would be given an opportunity to maintain his job while altering his behaviour.

I have considered this matter and I am satisfied that the company policy was that an employee may be terminated immediately if he uses an intoxicant, liquor or other substance during work and/or on company premises. The claimant was caught smoking and admitted to the act of smoking on the company premises.

It seems clear that what the claimant did was wrong and that he knew it was wrong. And even though others had been excused it did not give him a licence or right to perform such an act on his company premises. The employer was within his rights in dismissing him.

The smoking of a joint, the drinking of alcohol surely must be considered to be a wilful act and was done on the company premises. Not only was this an illegal act but it was contrary to the company's guidelines. Further, there is sufficient evidence that a reasonable person would find that such an act would be in the realm of recklessness.

It is my view that the minority decision of the Board was correct when that member stated that the claimant stated he was not aware of the company's rules and regulations. He being an employee of over eight years seniority should be expected to be aware of what is and what is not acceptable behaviour. It was not unreasonable for the employer to have a zero tolerance policy regarding the use of illegal drugs.

I am of the opinion that the minority view was correct and the claimant's appeal should have been denied.

For these reasons the majority decision of the Board is set aside and the appeal of the Commission allowed.

David G. Riche

Umpire

November 17, 2001
St. John's, NF