February 22 2018
An Assistant Fire Chief driving is pulled over for suspected impaired driving whereupon he fails two breathalyzer tests. He was driving the Fire Chief’s truck, which was impounded. His licence is suspended for 90 days.
Do you think the fire department has cause for summary dismissal without notice? In an interesting recent wrongful dismissal decision out of British Columbia, a court has ruled that the employer did not have cause. What interests me about this case is the judge’s assessment that the impaired driving by a senior official was not a very serious infraction and that it did not pose any threat to the interests of the employer or the public. See what you think.
The case is called Klonteig v. West Kelowna (District) (2018, BCSC)
The employee, KK, was a firefighter employed by the City of West Kelowna as Assistant Fire Chief. He commented this job in 2008 and was terminated in 2013 for alleged cause. By all accounts, KK was an excellent employee. The incident giving rise to his termination involved an arrest for impaired driving in October 2013. KK had borrowed the Fire Chief’s work pickup truck for a date night with his wife. On the way back from dinner, KK was pulled over for suspected impaired driving. KK failed two roadside breathalyzer tests, and was issued a 90 day driving prohibition. The pickup truck was impounded.
Two senior employer officials, including the Fire Chief, believed that KK should not be terminated because KK was an excellent employee with a clean record and they believed the incident was not very serious. However, the Chief Administrative Officer (Johnson), who has the sole authority to decide on employee discipline, disagreed and believed the KK’s actions were unfitting of an Assistant Fire Chief in that they exposed the District to the possibility of huge damages had an accident occurred and posed a risk to the public. Johnson decided that KK should be terminated for cause with no notice. KK sued for wrongful dismissal
This case falls into the category of termination for off-duty conduct, which is explored in Chapter 14 of the The Law of Work (Summary Dismissal: Termination for Cause Without Notice).
As noted there, generally speaking, what an employee does when they are not at work is none of the employer’s business. However, “when the employee’s off-duty conduct potentially threatens the employer’s economic interest or the ability of the employee to perform his or he job, then it comes the employer’s business (Law of Work, p. 179).
In this case therefore the question was whether the arrest of an Assistant Fire Chief for driving a Fire Chief’s truck impaired during his off duty hours threatened the employer’s interests or undermined KK’s ability to perform his job. The employer ultimately decided that the misconduct met this standard, primarily because impaired driving is a very serious offence that exposed the employer to potential financial harm (damages in a lawsuit) and reputational damage, since the role of the employer is to protect the public, not threaten it.
The judge disagreed. Justice MacNaughton of the B.C. Supreme Court found in favour of KK, ruling that the employer lacked cause for summary dismissal.
First she described the legal test, drawn from the Supreme Court of Canada decision in McKinley v. BC Tel (see Box 14.1):
While there is no single test which defines the degree of misconduct that will justify summary dismissal, it is clear that the misconduct must be considered in the context of the circumstances surrounding the misconduct and the nature of the employment relationship. Misconduct arising in one employment context might justify summary dismissal while it will not in a different employment context.
Turning specifically to the test in off-duty conduct cases, the judge wrote:
While I accept that conduct which occurs while off duty may amount to cause, as was the case in some of the decisions relied on by the District, in my view such conduct must be or be likely to be prejudicial to the interests or reputation of the employer. In this case, Mr. Klonteig was not representing his employer when he engaged in the conduct that led to the suspension of his licence. The vehicle he was driving, although belonging to the District, was unmarked as such. There was no public knowledge of Mr. Klonteig’s administrative suspension.
Controversially (in my opinion), the court clearly believed that impaired driving falls lower down the scale of misconduct than conduct that has led other courts to uphold summary dismissal for off-duty conduct:
Further, the conduct was not of the same moral reprehensibility as the possession of child pornography and the attendant extensive publicity which gave rise to cause in Kelly v. Linamar Corp.,  O.J. No. 4899 (S.C.J.), or the consorting with a prostitute on company premises and potential breach of privacy which gave rise to cause in Whitehouse v. RBC Dominion Securities, or the dishonest tax scheme engaged in by a chartered accountant and manager of internal audit at a hospital in Hyland v. Royal Alexandra Hospital, 2000 ABQB 458 (CanLII).
Because the misconduct was not considered very serious, and there was evidence that most of KK’s subordinates supported him staying on, the judge concluded that “members of the public” would not believe KK should be fired for his behaviour. The judge ruled that KK’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 that his termination was without cause.”
A written employment contract included a termination clause that required the employer to provide the following notice in the event of a termination without cause:
2. After completion of twelve months employment: reasonable notice in accordance with the common law, to a maximum of one month notice or salary in lieu of notice, at the employer’s option, for each completed year of service, to a maximum of twenty four (24) months, and with a minimum of three (3) months notice or salary in lieu of notice.
Applying this language, the judge awarded damages based on 5 month’s notice (for 5 year’s service). The Judge rejected KK’s argument that additional “Honda/Wallace” damages should be ordered for bad faith in the manner of dismissal arising from the failure of the employer to provide a reference letter.
Issues for Discussion
1. This judge did not believe that the Assistant Fire Chief’s impaired driving was sufficiently serious to justify termination for cause. Do you think she under estimated the seriousness of the misconduct? Should it matter that the employee was only “a little bit drunk”?
2. Do you think that the result would have been different had KK been in a car accident that harmed either himself or his wife or others? If so, on what basis would that distinction be relevant? Consider in contrast the decision of the Ontario court in Dziecielski v. Lighting Dimension, where the termination of an impaired employee driving a company car for cause was upheld. What explains the different outcome in that case and the case considered in this blog entry?