Summary of Issue: Misconduct Prior To Employment

Decision A0239.06 Full Text of Decision A0239.06

The claimant, a pipefitter, was required as a condition of new employment to submit to a drug test to access the employer's work site. Shortly after the employment start, the claimant was informed that the drug test was positive for a particular active ingredient in marijuana and was dismissed accordingly. The Court reversed the Umpire's decision re-affirming the following principles. Misconduct can result from an act or omission prior to taking the employment from which the employee is subsequently dismissed if that misconduct is the cause of the dismissal from employment. The Act speaks of a loss of "any employment" as a result of misconduct and does not limit a disqualification to the employment occupied at the time of the misconduct. The relationship between employment and misconduct is not one of timing but of causation. The Court took into account the following decisions: Smith (A-875-96), Fakhari (A-732-95), Namaro (A-834-85), Jewell (A-236-94), Secours (A-352-94) and Langlois (A-96-95).

Decision A-0875.96 Full Text of Decision A-0875.96

Claimant started working as a truck driver in 02-94. In 06-94, claimant advised the employer that he could not carry on working as a driver: licence suspended for an offence committed in 07-93 i.e. seven months before he started to work. In a majority decision, the FCA held that claimant had lost his job without just cause. The fact that he could not retain his employment and had to resign following the loss of his licence is certainly a breach of duty which occurred during his employment. This breach was a direct result of his misconduct. To claim that the misconduct occurred prior to the employment is not a cause for disqualification is too mechanical an application of Brissette (A-1342-92) and Nolet (A-517-91). It fails to appreciate that the timing factor does not stand alone. It is but another facet of the casual link which must exist between the misconduct and the loss of employment.

Decision 25340A Full Text of Decision 25340A

The possession of a valid driver's licence was an essential condition of his employment. The incident which led to the suspension of the driver's licence of the claimant predated his employment with the company which dismissed him. I am unable to accept the submission that this was not misconduct.