Canada: Off-Duty Drunk Driving Not Just Cause For Termination – Even For A Firefighter

Last Updated: July 4 2018
Article by Stringer LLP

In Klonteig v West Kelowna (District), the British Columbia Superior Court found that an employer that terminated a firefighter for driving drunk in a fire department vehicle while off duty did not have just cause to terminate his employment.

The Facts

The employee had been a firefighter with the employer for 13 years. For the last three years of his employment, he had been Assistant Fire Chief.

The employee had been a very well-respected firefighter, and had received positive performance reviews for many years which recognized him as a strong leader.

While the employee was off duty, he was pulled over for suspected impaired driving, and failed two breathalyser tests. His licence was administratively suspended for 90 days.

The employee immediately reported the incident to his employer, and was very forthright and honest about what had happened. The employer acknowledged that the behaviour was out of character for him. Although the human resources team strongly recommended a suspension, the Chief Administrative Officer insisted that he be terminated for just cause.

The Decision

The Court noted that there is no single test which defines the degree of misconduct that will justify summary dismissal. Rather, misconduct must be considered in the context of all of the circumstances, and the nature of the employment relationship. The Court cited McKinley v. BC Tel for the notion that a “principle of proportionality” requires that an effective balance is struck “between the severity of the employee’s misconduct and the sanction imposed”.

The Court considered that the employee had been driving a fire department vehicle when the incident occurred, but noted that he had permission to drive the vehicle for personal use, and that the vehicle bore no obvious markings which would have indicated to members of the public that it belonged to the fire department. Further, there was no public knowledge of his license suspension.

The Court accepted that community members would expect a senior employee, in a department dealing with the protection of the public and public safety, to avoid risk of public harm. However, it noted that the employee was not the public face of the fire department, as his duties were more administrative. The Court noted that the other firefighters in the department had not lost confidence in him, and it was unlikely that members of the public would do so either.

As such, the Court concluded that the employee’s off-duty conduct was not incompatible with his faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the employer, and that his termination was without cause. The Court awarded him five months’ pay in accordance with he terms of his employment contract.

The Takeaway

While off-duty conduct may amount to just cause for termination in certain circumstances, this case underscores that these circumstances are limited. Off-duty conduct that is not directly detrimental to the organization will rarely constitute just cause where an employee is not the public face of an organization, especially where there is not widespread public knowledge of the conduct. Had the firefighter had an accident while operating the vehicle impaired, this case would likely have gone the other way.

Although the employer was incorrect in its assertion of cause, the Court declined to award bad faith damages or damages for mental distress. The Court found that there was no bad faith in the manner of his dismissal. The human resources department initially recommended a suspension or reprimand, but the employee was aware that the Chief Administrative Officer had the final word, and that he could be subject to termination.

The employer refused to provide a reference letter, but there was no evidentiary basis to show that his lack of success in finding employment in the firefighting field was as a result of the lack of letters of reference. The Court noted that the employer did not attack his reputation when it dismissed him, and did not misrepresent the reason for the decision to terminate the employee.

This case is also a good reminder to employers that it is important to be professional and respectful when dismissing employees, even when alleging just cause for seemingly reprehensible behaviour.  Bad faith may arise where an employee is led to believe that he will receive a lesser form of discipline, and then surprised by being dismissed for cause.  Acting professionally spared the employer additional damages.

This blog was first published on First Reference Talks.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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