Failing a Breathalyzer Test in a Company Vehicle: Just Cause for Dismissal?
Previously printed in the LexisNexis Labour Notes Newsletter.
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.
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.
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”.
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:
- 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
- the employer’s reputation, product or business will be damaged by the continued employment of the individual.
- 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.