Canada: Failing A Breathalyzer Test In A Company Vehicle: Just Cause For Dismissal?

The B.C. Supreme Court recently determined in Klonteig v. District of West Kelowna, 2018 BCSC 124 that an assistant fire chief was wrongfully dismissed when his employer terminated his employment after he failed two breathalyzer tests while driving his employer's vehicle. The Court's analysis reinforces that while off-duty conduct may constitute just cause for termination, careful consideration must be given to whether the conduct is or is likely to be prejudicial to the interests or reputation of the employer.

Facts

After a "date night" with his spouse in October 2013, the Assistant Fire Chief for the City of West Kelowna (the "District") was pulled over for suspected impaired driving. Kerry Klonteig was off-duty at the time but driving a city vehicle assigned to the Fire Chief. Mr. Klonteig failed two roadside breathalyzer tests and was issued a 90-day administrative driving prohibition. The vehicle was towed and impounded. Mr. Klonteig reported the incident to the Chief the next day. He was reportedly both forthright and honest and also distraught and remorseful.

Mr. Klonteig had worked as a career firefighter since 1995. He was promoted to Assistant Fire Chief in 2005. At the time of his discharge, the majority of his time was spent on labour relations and human resources issues as well as other administrative duties. The evidence demonstrated that he had limited opportunity for exposure to the District Council and limited public exposure. Prior to the incident in question, Mr. Klonteig had a glowing employment record. The Court noted that he was highly respected by his colleagues.

The authority to promote, discipline and suspend employees was vested in the Chief Administrative Officer (CAO). He decided to terminate Mr. Klonteig's employment for just cause over the objections of the Fire Chief and the human resources professional managing the case. The CAO was adamant in his decision and expressed outrage about the potential liability to which Mr. Klonteig had exposed taxpayers and the risk he had created for public safety.

Termination Letter

The termination letter stated, in part:

You were aware that you should not have been driving the Fire Chief's truck for a personal evening out, let alone when you would be consuming alcohol. This is a very serious incident as you were driving a District vehicle while impaired and consequently posed a threat to the safety of yourself and others travelling on the roads that evening. As well, the District vehicle was impounded. This is simply unacceptable for someone in your position whose job is to protect public safety.

This incident also reflects poorly on our Department and the District. You are a leader in the Fire Department and this incident displays an extremely poor use of judgment on your part. We recognize that you showed remorse, but it will be impossible for you to regain the necessary respect of the members of the Department. Your conduct has irreparably harmed the employment relationship. Therefore, the District has decided that it has no choice but to terminate your employment for just cause.

The Court found that the letter was inaccurate in two ways. Contrary to the first sentence in the letter, the Chief had allowed Mr. Klonteig to drive the truck and placed no restrictions on its use. As well, there was no policy that prohibited personal use of vehicles. The Court also found that Mr. Klonteig still had the respect of his colleagues. In fact, a significant number of employees had signed a letter of support for Mr. Klonteig which contradicted the employer's assertion that it would be "impossible" for him to regain the necessary respect of "the members of the Department".

Decision

The Court stated that off-duty misconduct may amount to just cause, but that the conduct "must be or is likely to be prejudicial to the interests or reputation of the employer". Mr. Klonteig was not representing the Fire Department at the time he was pulled over and driving an unmarked vehicle. There was no public knowledge of his driving suspension. Indeed, the Court noted that Mr. Klonteig was not the public face of the Fire Department. That role fell to the Fire Chief and Mr. Klonteig's role was more administrative.

Further, the Court determined that if Mr. Klonteig's conduct did not cause a loss of confidence in the eyes of the career firefighters (whose role it is to be first responders at fire scenes involving impaired drivers), it was difficult to conclude that members of the public at large would lose confidence. There was no evidence before the Court that the public at large would have been offended if Mr. Klonteig's lack of judgment had been sanctioned with a lengthy suspension without pay.

The Court concluded that Mr. Klonteig's off-duty conduct was not incompatible with his faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the District, and his termination was without cause. He was awarded the five months' pay in lieu of notice provided in his employment contract.

Lessons for Employers

Before discharging an employee for off-duty conduct, employers should take a step back and give careful consideration to what the actual impact of the conduct is or may be on their interests. It is easy to act on an initial visceral reaction to what may be perceived as distasteful or indeed reprehensible conduct but it is much better to consider whether the conduct is indeed incompatible with continued employment.

Employers must have sufficient evidence to prove either that:

  1. the off-duty conduct itself is connected to the person's employment responsibilities (e.g. illegal conduct by a police officer who is in a unique position of trust or an incident of fraud by a financial controller); or
  2. the employer's reputation, product or business will be damaged by the continued employment of the individual.
  3. Absent a clear and demonstrable connection to legitimate business or organizational interests, employers generally have no right to interfere with their employee's off-duty time or discharge them for their off-duty conduct.

Originally published in the LexisNexis Labour Notes Newsletter.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
18 Sep 2018, Webinar, Vancouver, Canada

This introductory level webinar will provide those new to human resources with an overview of the concept of constructive dismissal, including when it occurs, how to manage the risk of constructive dismissal claims, and how to respond to claims when they are made.

20 Sep 2018, Seminar, Vancouver, Canada

This introductory level seminar will provide those new to human resources with an overview of the concept of constructive dismissal, including when it occurs, how to manage the risk of constructive dismissal claims, and how to respond to claims when they are made.

27 Sep 2018, Other, Vancouver, Canada

A fair and thorough workplace investigation paves the way for a successful result at arbitration, trial, or hearing.

Similar Articles
Relevancy Powered by MondaqAI
Integritas Workplace Law Corporation
EKB | Edwards, Kenny & Bray LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Integritas Workplace Law Corporation
EKB | Edwards, Kenny & Bray LLP
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions