Worker's drug test refusal leads to employment insurance dispute

The Federal Court of Appeal recently dealt with an appeal by a worker who was denied employment insurance benefits after losing his job. The worker refused to submit to a drug test requested by his employer. 

The employer's drug policy stated that an employee's refusal to submit to a drug test was considered a violation of the policy and cause for immediate termination. The worker was dismissed following his refusal.

The worker applied for employment insurance benefits after his dismissal. However, the Social Security Tribunal denied him benefits on the basis that he had lost his job for misconduct. The worker did not dispute that the employer requested the drug test or that he refused. 

He also did not dispute the content of the drug policy. Instead, he argued that the request did not comply with the policy in certain respects, and therefore, he was justified in refusing.

The case raised questions about what constitutes misconduct for employment insurance purposes and whether a worker's reasons for refusing an employer's request are relevant to that determination. 

Social Security Tribunal's decision

The Social Security Tribunal's General Division examined whether the worker's dismissal was for misconduct as contemplated in employment insurance legislation.

The General Division noted that the concept of misconduct does not require that the employee do anything wrong. Instead, it focuses on whether the employee's conduct was wilful, that is, conscious, deliberate or intentional.

The General Division stated: "There is misconduct if the Appellant knew or should have known that his conduct could get in the way of carrying out his duties toward his employer and that there was a real possibility of being let go because of that." 

Based on this definition, the General Division was satisfied that the worker's dismissal was for misconduct.

The worker knew the employer's drug policy required submission to drug tests when requested and that refusal was grounds for immediate termination.

The Appeal Division denied the worker leave to appeal on the basis that he had no reasonable chance of success in establishing a reviewable error. The worker then sought judicial review before the Federal Court, which dismissed his application. The worker appealed to the Federal Court of Appeal.

Worker's arguments on appeal

The worker argued that his refusal to take a drug test should not have resulted in the denial of benefits because the request did not comply with the drug policy in certain respects, making his refusal justified. 

The worker did not dispute that the employer requested the test and that he refused. He also did not dispute the content of the drug policy. Rather, his argument focused on whether the manner in which the employer applied the policy justified his refusal.

The worker attempted to distinguish his case from previous court decisions on the basis that he did not take issue with the drug policy itself, but with the manner of its application. The worker also attempted to distinguish previous decisions on another basis. 

He argued that there was no practical avenue to address allegations of wrongful dismissal because he immediately found another employer after his dismissal and suffered no damages. He sought employment insurance benefits after the new employment came to an end.

The worker also took issue with the validity of the court's jurisprudence on the issue of misconduct for employment insurance purposes.

The worker argued that the approach taken by courts in previous decisions was incorrect and should be overruled.

Court's examination of misconduct test

The Federal Court cited a recent decision which confirmed jurisprudence to the effect that the test for misconduct focuses on the employee's knowledge and actions and not on the employer's behaviour. 

The Court of Appeal stated: "We would add that the court jurisprudence makes sense. Were the applicant's submissions to be upheld, the Social Security Tribunal would become a forum to question employer policies and the validity of employment dismissals. Under any plausible reading of the legislation that governs the Tribunal, it is a forum to determine entitlement to social security benefits, not a forum to adjudicate allegations of wrongful dismissal."

The court examined whether the worker's attempts to distinguish previous decisions could assist his case.

The court found that the difference the worker identified, which he took issue with the manner of the drug policy's application rather than the policy itself, could not assist him. The court stated that jurisprudence applies to both scenarios.

The court also examined the worker's second attempt to distinguish previous decisions based on immediately finding another employer after dismissal. 

The court found this difference could not assist the worker because the availability of damages for wrongful dismissal is irrelevant to entitlement to employment insurance benefits.

Validity of misconduct jurisprudence

The court examined whether the worker had convinced the panel that the jurisprudence on misconduct was manifestly wrong, which would be necessary to overrule it. The court found that the worker had not met this threshold. 

The court noted that the established approach, focusing on the employee's knowledge and actions rather than the employer's behaviour, has been consistently applied and serves the purpose of ensuring the Social Security Tribunal remains focused on entitlement to benefits.

The court's task was to assess whether the Federal Court selected the correct standard of review and whether it properly applied that standard.

The court found that the Federal Court was correct in selecting reasonableness as the applicable standard of review and properly found that the Appeal Division's decision was reasonable.

Appeal dismissed and reasoning

The court found the Appeal Division had properly denied leave to appeal on the basis that the worker had no reasonable chance of success in establishing a reviewable error.

The General Division had found that the worker's refusal to submit to the drug test constituted misconduct because it was conscious, deliberate conduct that the worker knew or should have known could result in termination. 

This analysis was consistent with established jurisprudence on what constitutes misconduct for employment insurance purposes.

The court noted that allowing workers to challenge employer policies or the manner of their application in employment insurance claims would transform the Social Security Tribunal into a forum for adjudicating wrongful dismissal allegations. 

This would be inconsistent with the tribunal's mandate to determine entitlement to social security benefits. Workers who believe they were wrongfully dismissed have other legal avenues to pursue those claims, separate from the employment insurance system. The appeal was dismissed.