IN THE MATTER of the Employment Insurance Act
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IN THE MATTER of a claim for benefits by
JOHN MCNAMARA
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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 Edmonton, Alberta, on April 13, 2005.
CORRESPONDING CUB: 65619A
CORRESPONDING FEDERAL COURT DECISION: A-239-06
DECISION
Heard on February 22, 2006, at Edmonton, Alberta.
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
The issue in this appeal, filed by the claimant, involves the loss of employment for misconduct to thereby disqualify him from receiving unemployment benefits.
The claimant secured employment with Lockerbie & Hole Inc. Lockerbie & Hole Inc. was employed by Syncrude. Syncrude established a policy requiring that a worker before entering its site must undergo a drug and alcohol test. The claimant submitted to a test on November 19, 2004. The results of laboratory tests could not be obtained immediately due to the volume coming into the laboratory.
The claimant commenced his employment on November 22, 2004, and worked for four days. The claimant was then informed that the laboratory test proved positive for the substance THC. Because the claimant would not, in that circumstance be allowed on the Syncrude site, his employment was terminated.
The claimant was denied unemployment benefits. The Employment Insurance Commission determined that the claimant lost his job because of misconduct due to the fact he had ingested a forbidden substance into his system.
Unfortunately there is no evidence to show exactly when the claimant took the substance. However, the claimant's employment with Lockerbie & Hole did not begin, at the earliest, until he submitted the drug and alcohol test on November 19, 2004. It is, therefore, apparent that the claimant took the illicit substance prior to the commencement of his employment.
There is ample jurisprudence to establish that criminal activity which occurred prior to being hired will not provide evidence of misconduct. I interpret that to mean any act committed prior to securing employment will not provide evidence of misconduct to justify the termination of employment. Claimant was not employed when the alleged misconduct occurred. He could not be dismissed, therefore, for misconduct. He was dismissed because Syncrude would not permit him to enter the work site. The claimant, in the circumstances concerning his dismissal, is qualified to receive benefits.
The Board of Referees erred in law in concluding otherwise - and its finding to the contrary is based on an erroneous finding of fact.
The appeal will be allowed.
"W.J. Haddad"
W.J. Haddad, Q.C. - Umpire
Edmonton, Alberta,
April 4, 2006.