A recent decision from the Ontario Superior Court is a reminder
to employers that dismissal for just cause must be based on solid
ground. Relying on vague acts of misconduct will not suffice, and
policies must be properly implemented and consistently
v. Wright Auto Sales Inc., the plaintiff, Mr. Volchoff, was
terminated for cause. The defendant employer, Wright, alleged that
the Mr. Volchoff had been under the influence of alcohol while at
work on a number of occasions and drove a company vehicle while
Wright operated a used car sales business and Mr. Volchoff was
the manager of its Cambridge, Ontario operation. The allegations of
misconduct included: showing up to a managers' meeting smelling
of alcohol, a customer complaint that Mr. Volchoff was intoxicated
while at work, and general complaints from co-workers that he had
been driving a company vehicle while impaired.
Setting aside any human rights considerations (which was not an
issue at trial), these are serious allegations which, if true, may
very well have proved sufficient cause for summary dismissal.
However, the employer's case unraveled at trial.
Mr. Volchoff admitted that he had one glass of wine prior to the
managers' meeting while having lunch at a nearby restaurant.
Although at trial Wright asserted it had a zero-tolerance for
alcohol policy, there was no written policy at the time. Further,
when confronted about the incident, Mr. Volchoff was not reminded
of the alleged policy and warned that he could not drink during
working hours. Instead, he was simply told that he needed to be
responsible with alcohol at work.
With respect to the customer complaint and internal complaint,
the details were vague. Although Wright conducted an investigation
into the internal complaint, it never provided Mr. Volchoff with
the specifics of the allegations or an opportunity to respond. Nor
were there any specific allegations, only vague comments that he
was sometimes red in the face or smelled like alcohol. At trial,
witnesses testified that Mr. Volchoff had smelled of alcohol on
occasion; however, none saw him exhibit symptoms that would impair
his ability to do his job or drive a car, for instance, slurred
speech, unsteadiness on his feet, or change in his personality.
The court found that Wright had based its decision on vague
allegations of consumption of alcohol during working hours, which
fell short of the high standard required to prove just cause.
There are a number of takeaways from this case. First,
employment policies of this magnitude of importance should be
committed to writing, and all policies must be clearly communicated
to employees and consistently enforced. Second, workplace
investigations must be handled with care. When conducting an
investigation the employer should ensure that it has collected
sufficient detail and evidence regarding the allegations. Equally
important, but often missed, the employee must be provided
sufficient information about the allegations and a bona fide
opportunity to respond.
In the heat of an investigation, employers must resist the
temptation to jump to conclusions and investigators must remain
objective despite often strong internal pressure to reach a
particular result. The purpose of the investigation is to find the
truth, not to find evidence to support assumptions and premature
conclusions. An unsupported conclusion reached through a flawed
investigation may expose an innocent employee to severe undeserved
consequences and, ultimately, may expose the employer to
significant damages when its defence unravels at trial.
The new Sexual Violence and Harassment Action Plan Act (Bill 132) imposes a range of new duties in regard to workplace harassment. These include requiring employers to amend their programs to implement workplace harassment policies and establish new rules for the investigation of workplace harassment incidents or complaints.
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