Section 29(1)(b), 29(1)(m)
MISCONDUCT, Drug testing, Reason for discharge
CITE AS: Roberts v Americhem Sales Corp., Kent Circuit Court, No. 02-10788-AE (April 11, 2003)
Appeal pending: No
Claimant: John D. Roberts
Employer: Americhem Sales Corporation
Docket No. B2002-06554-164443
CIRCUIT COURT HOLDING: Where the sole reason offered for discharge was claimant’s failure to pass a drug test, but a Section 29(1)(m) disqualification is not supported by the record, claimant cannot be disqualified under Section 29(1)(b) for alleged conduct for which he was not discharged.
FACTS: Employer repeatedly warned and disciplined claimant for poor job performance, failing to follow instructions, and insubordination. Employer required claimant to submit to drug and alcohol testing due to the continued pattern of behavior. Claimant was initially told the test results were negative, but four days later he was told he tested positive for cocaine. Claimant demanded a second test, but it was not performed. Employer discharged him for testing positive for cocaine, a violation of its employee handbook.
DECISION: Claimant is not disqualified under 29(1)(m) or 29(1)(b).
RATIONALE: Failure to administer a confirmatory test when the employee disputes the test results bars disqualification under Section 29(1)(m). Employer’s witness testified claimant was discharged for testing positive on the drug test. Employer alleged on appeal that claimant was discharged for additional reasons tantamount to misconduct. However, this testimony came only in response to a leading question by employer’s counsel. Employer’s witness lacked personal knowledge of the reason for claimant’s discharge.
That the Legislature dealt separately with testing positive for illicit drugs confirms that it is different from “misconduct.” If the only reason for a claimant’s discharge is failing a drug test, then this compels the conclusion that the claimant was not fired for misconduct. An employee cannot be disqualified “from benefits for conduct for which he or she was not discharged.”
11/04