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Employment & Labour

Drinking and driving may not be cause for dismissal

By Stuart Rudner 

Previous court decisions have confirmed that an employee’s conduct outside of work may form the basis for the termination of their employment. However, not all misconduct outside of work will constitute just cause, as confirmed in this recent British Columbia Supreme Court case.

Background

The plaintiff was a firefighter employed by the defendant as an assistant fire chief.

In the early morning hours of Oct. 7, 2013, the plaintiff was driving home after a “date night” with his wife, when he was pulled over by a Royal Canadian Mounted Police for suspected impaired driving. He failed two roadside breathalyzer tests and received a 90-day licence suspension. The vehicle he was driving was also impounded. At the time, the plaintiff was off duty but the vehicle was the fire chief’s designated vehicle which had the fleet number on the rear but was otherwise unmarked.

The plaintiff immediately reported the incident to the fire chief and the human resources advisor. They initially believed that the suspension of the plaintiff’s licence was for 24 hours and considered the possibility that the incident might result in a reprimand. However, as the length of the suspension became clear, the matter was escalated to the district chief administrative officer (the DCAO) and the plaintiff was suspended.

Up until that point the plaintiff was considered an excellent employee and he had a clean record. Nevertheless, the DCAO decided that the plaintiff’s employment with the district should be terminated. Both the fire chief and the human resources advisor disagreed with the DCAO that termination was appropriate and tried to persuade him to consider a lesser sanction. However, the decision rested with the DCAO, who was angered by the risk to public safety and potential liability to taxpayers created by the plaintiff’s actions. As a result, he did not follow the recommendations of the fire chief and the human resources advisor and the plaintiff’s employment was terminated for cause.

The plaintiff brought a claim for wrongful dismissal.

The decision

The court accepted that conduct which occurred while off duty could amount to just cause but held that “such conduct must be or likely to be prejudicial to the interests or reputation of the employer.” In this case, the court found that:

  • The plaintiff was not representing the district when he engaged in the conduct that led to the suspension of his licence;
  • the vehicle driven by the plaintiff at the time of the incident, although it belonged to the district, was unmarked; and
  • there was no public knowledge that the plaintiff had received an administrative suspension.

The court accepted that the district’s 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, the plaintiff was not the public face of the fire department and his duties were mainly administrative. The court also distinguished between a firefighter and a police officer, “who are in a unique position with respect to public trust and confidence in their ability to discharge their duties.

The court also held that, if the plaintiff’s colleagues, whose job it was to be the first response to fire scenes involving impaired drivers, had not lost confidence in him, it was difficult to conclude that members of the public at large would do so.

Therefore, the court concluded that the plaintiff’s termination was without cause because his off-duty conduct was not “incompatible with the faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the District.”

Although the court found that the plaintiff was wrongfully terminated, damages were limited to five months’ pay in lieu of notice in accordance with the termination clause contained in the plaintiff’s employment agreement.

Final thoughts

This case highlights that even if an employee’s behaviour appears to be reprehensible and inconsistent with the terms of their employment, it may not be sufficient to establish “just cause.” Consideration should be given to what prejudice, if any, the alleged misconduct has caused to the interest and reputation of the company and the employee’s actual duties and role in the company.

Employers are encouraged to proceed with caution when relying on off-duty conduct as grounds for dismissal. Similarly, employees should not assume that they cannot challenge an employer’s decision to terminate their employment, even if their off-duty conduct is questionable.

As an aside, it is also interesting to note that although the plaintiff had been wrongfully terminated, damages were significantly reduced because of the termination clause contained in his employment agreement. This emphasizes the importance of having a well drafted and legally enforceable employment agreement.

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