| Issue: |
Sub-Issue 1: |
Sub-Issue 2: |
Sub-Issue 3: |
| misconduct |
alcohol, drugs and gambling |
|
|
Summary:
The claimant was dismissed due her misconduct (excessive consumption of alcohol in the workplace). The BOR and the Umpire concluded that the actions in question were not wilful given that the claimant attributed her alcohol consumption to her fatigue and that she had never received any previous warning from her employer regarding her work. Looking to the decision in Mishibinijima, the FCA reiterated that there can only be misconduct if the conduct is deliberate, that is, the actions that lead to the dismissal were conscious, wilful and intentional. In other words, there is only misconduct when the claimant knows or should have known that his conduct would impede on his ability to execute his obligations towards his employer and that, as a result, it was possible for him to be dismissed. The FCA stated that the claimant's explanations did not help in answering the issue of misconduct as they did not suffice to supersede the wilful nature of the alcohol consumption. Therefore, the Umpire should have corrected the error of law committed by the BOR.
