We receive calls from employers asking whether they can terminate an employee for off duty conduct. Unfortunately there is not an easy answer. This blog discusses two cases of similar off-duty conduct. A judge found the employer did not have just cause to terminate in one case whereas in the other case the judge concluded the employer did have just cause.

Case Where Off-duty Conduct Did Not Amount to Just Cause

In a 2018 decision, a judge concluded that driving a Company vehicle while impaired was not just cause for termination.

Mr. Klonteig worked with the City of West Kelowna (“the District”) as a firefighter and later as the Assistant Fire Chief. He had an unblemished employment record and it was undisputed that he was an exemplary and valued employee.

After 13 years of employment with the District, Mr. Klonteig was terminated based on an off-duty incident of driving while impaired. Mr. Klonteig was driving home in the vehicle allocated to him as an Assistant Fire Chief. This vehicle was a pick-up truck and there were no policies restricting its personal use. The only indicator that it belonged to the District at all was a fleet number on its rear. Mr. Klonteig was pulled over for suspected impaired driving and failed two roadside breathalyzer tests. The District vehicle was impounded and Mr. Klonteig received a 90-day administrative driving prohibition.

That same day, Mr. Klonteig reported the incident to the District’s Chief and a human resources advisor. Mr. Klonteig was sent home and he believed he was simply suspended from work. However, once the District’s Chief Administrative Officer, Mr. Johnson, was informed of the incident, he exercised his discretion to terminate Mr. Klonteig’s employment. Mr. Johnson chose termination despite the advice of two senior managers because of his concern for potential liability and public safety.

Mr. Klonteig was provided with a cheque for his outstanding unpaid wages, a payout of his accrued vacation time, and a promise of a written reference letter.

The District alleged that the incident was serious enough to amount to just cause for termination, while Mr. Klonteig submitted that he was wrongfully terminated.

The BC Supreme Court agreed with Mr. Klonteig that his dismissal was wrongful and found that the District did not have just cause to terminate him.

Case Where Off-duty Conduct Amounted to Just Cause

The facts of the Klonteig case can be contrasted with a 2012 Ontario case we previously discussed  here.

In this case, Mr. Dziecielski was an employee of the Company for 13 years and had no history of misconduct or performance issues. Mr. Dziecielski borrowed a company vehicle without permission and crashed it while under the influence of alcohol. The vehicle was destroyed and the employee sustained life-threatening injuries. Based on the test that judges apply when deciding whether just cause for termination exists, the judge found the employer was justified in terminating the employee for just cause.

The Test for Determining Whether Just Cause Exists

A judge will adopt a contextual approach when determining the degree of misconduct that will justify summary dismissal. One must look at both the circumstances surrounding the misconduct and the nature of employment relationship. Further, the principle of proportionality is vital; balance must be struck between the severity of the employee’s misconduct and the sanction imposed.

Judges have found that in order for off-duty conduct to amount to cause, the conduct must be or be likely to be prejudicial to the interests or reputation of the employer.

Application of the Test in the Klonteig Case

Mr. Klonteig was found not to be representing his employer when he was stopped for impaired driving. The vehicle he was driving was essentially unmarked and his conduct was not considered to be of the same high moral reprehensibility as some of the cases cited by the District. Further, the court pointed out that Mr. Klonteig’s role was more administrative so he was not the public face of the Fire Department, nor was the public aware of his administrative suspension.

Based on the fact that Mr. Klonteig’s conduct did not cause his fellow firefighters to lose confidence in him, the court concluded the public would be unlikely to do so either. All in all, Mr. Klonteig’s off-duty conduct was not incompatible with faithful discharge of his duties, nor was it prejudicial to the interests or reputation of the District.

Application of the Test in the Dziecielski Case

The employee in the second case was charged with a number of criminal offences related to drunk driving. The judge stated that the employee was guilty of serious misconduct and discussed the problem of drunk driving in our society. He noted that the employee’s conduct was prejudicial to the employer’s business as the employer’s goodwill and reputation could have been significantly affected. Further, the employee had signed an Employee Handbook that made it clear consuming alcohol on the job could result in termination of employment because it is a violation of a serious workplace rule. Based on the context of this case, the judge concluded that this single act of drunk driving was enough to constitute just cause for dismissal.

What These Conflicting Cases Mean for Employers

The differing outcomes in these two cases show how important it is for employers to thoroughly assess the circumstances surrounding misconduct in its entirety before terminating an employee for just cause for off-duty conduct.

As can be seen from the cases discussed in this blog, although the test applied by the the courts is consistent, outcomes are determined on a case-by-case basis. Driving a company vehicle can amount to just case in some cases but not others.

If you are considering disciplining or terminating an employee for off-duty conduct, you can reach one of our lawyers at [email protected] or 647-204-8107.