April 9 2012
Here’s a good review for my employment law students cramming for next week’s final.
Recall that under the Canadian common law model, an employer can dismiss an employee at any time for any reason or no reason at all, as long as they provide the employee with the amount of notice required by the contract, which must be at least as much as required by the Employment Standards Act.
However, an employer can fire an employee with no notice if the employee has committed a serious breach of the contract. Sometimes employers do just that, and then the employee sues for “wrongful dismissal”, asking the court to find that what the employee did wrong was not so wrong that they should forfeit the right to notice.
Basic Facts: Dziecielski v. Lighting Dimension
In a recent case, an employee with 23 years’ service visited a client, but on the way back to the workplace, stopped for lunch and drank 4 beers. He then was involved in a serious crash on Highway 400 and almost died, and was charged under the Criminal Code, and later plead guilty. He was dismissed ‘for cause’, without notice. The employee sued, claiming the employer lacked cause, and seeking 24 month’s reasonable notice, plus punitive and aggravated damages.
During his employment, the employee had been given a Handbook, which included a rule prohibiting alcohol consumption, but he had not been given any new consideration when given this handbook, so it was not likely enforceable, as my students will know.
Discussion of Legal Tests (Justice Whitaker):
Justice Whitaker reviewed the law of cause for dismissal:
A Single Isolated Event: “Normally, a single and isolated incident will not be sufficient cause to dismiss a long service employee, particularly one with a clean disciplinary and performance record. The one single event must be particularly egregious to justify dismissal with cause.”
Intoxication: “Intoxication at work does not automatically justify termination. Again, the circumstances of the intoxication and the nature of the work in question will provide part of the context that must be considered by the employer. Where for example the job requires drinking alcohol with potential clients, intoxication alone should not be sufficient to establish cause. On the other hand an aircraft pilot who is intoxicated before a flight may be dismissed with cause due to the relationship between the conduct and the essential features of the work”
Whitaker then cited Justice Echlin’s text on Summary Dismissal:
The following factors are relevant to a determination as to whether an employee’s misconduct justifies dismissal:
• whether the employee was guilty of serious misconduct;
• whether the employee’s impugned behaviour or act was merely conduct with which the employer disagreed, or “trifling causes”, rather than transgressions or misconduct which any reasonable person could not overlook;
• whether the employee’s misconduct was inconsistent with or prejudicial to the employer’s business, and therefore in breach of an implied term of the employment agreement;
• whether the employee’s misconduct was in breach of an express provision of the employment agreement; and
• whether the misconduct merely reflects the employee’s poor judgment or inadvertence.
In the case of criminal conduct, the following factors are relevant:
• whether the employee was culpable for the alleged criminal conduct, or misconduct of a criminal nature;
• whether the conduct was prejudicial or inimical to the employer’s legitimate business interests;
• whether the conduct was in breach of the implied duty of fidelity, or fiduciary duty, or an express condition of employment, and therefore in breach of the employment agreement;
• whether there is evidence of actual harm or evidence substantiating potential harm to the employer.
The employer had cause for dismissal. He weighs the factors that support the employee’s case against those that support the employers:
The following considerations are to the employee’s favour; he is now middle aged, without a university degree or other certification, has spent most of his entire working life with the employer, and for these reasons may be particularly challenged in his efforts to re-enter the labour market. The employee has a clean record of discipline and there are no complaints about performance. In particular, there has been no concern about the use of alcohol or unsafe conduct generally. These considerations render any dismissal particularly harsh and may be considered in weighing the proportionality of the misconduct to the employer’s response….
Turning now to considerations which assist the employer in justifying dismissal, there are several. The employee was certainly guilty of serious misconduct in the course of employment while operating the employer’s vehicle and which attracted criminal sanction. I consider the fundamental nature of this to be drunk driving rather than just “intoxication. Increasingly, drunk driving is considered now within society at large be a very serious criminal offence which attracts significant minimum sentences. Drunk driving is potentially lethal conduct and in this case the employee is extremely lucky to have survived and to not have injured or killed others travelling on the public highway.
Whitaker rules that the conduct was serious enough to fall within the category of a one-time serious incident of wrongdoing. Whether the Handbook was part of the contract or not is beside the point, since “Any reasonable person must have understood that this was very serious misconduct.” Whitaker also expresses concern that the employee testified that “he wasn’t drunk”, which suggested he has not accepted full responsibility for his conduct.
This is a very sad story. The employee almost died, and could have killed other people. He also lost his job and may have trouble finding new employment. In addition to receiving nothing from the employer and having to pay his own lawyer, he was also ordered to pay the employer’s legal costs in the amount of almost $30,000. If there is any doubt of the costs of drinking and driving, here is yet another case in point.
Does anyone believe Justice Whitaker got this case wrong?