Are You Ever Off the Clock? Termination for Off-Duty Conduct
By: Michelle QuinnEmployers can discipline and, in some cases, dismiss employees for off-duty conduct. The question is how bad does the conduct have to be? In the recent BC Supreme Court decision of Klonteig v. West Kelowna (District), 2018 BCSC 124, the judge found that the District (the employer) should not have terminated Mr. Klonteig for cause after he was given a 90 day administrative driving prohibition while off duty.
THE FACTS
In the recent case of Klonteig v. West Kelowna (District) 2018 BCSC 124, the BC Supreme Court considered whether the defendant employer had cause to dismiss the plaintiff for conduct which occurred while he was off-duty.
The plaintiff, Mr. Kerry Klonteig (“Mr. Klonteig”) was a trained firefighter. In 1995, he became a career firefighter with the City of Kelowna. On June 16, 2008, Mr. Klonteig began working for the City of West Kelowna, then known as the District of Westside (the “District”), as an Assistant Fire Chief. Mr. Klonteig had an unblemished employment record and, according to the District, he was a valued and exemplary employee.
On October 7, 2013, while Mr. Klonteig was returning to his home he was pulled over by the RCMP for suspected impaired driving. He was off-duty at the time. The vehicle which he was driving belonged to the Fire Chief. It had a fleet number on its tailgate, however, it was not decaled and bore no indication that it belonged to the District. After failing two roadside breathalyzer tests, Mr. Klonteig received a 90-day administrative driving prohibition. On the same day, Mr. Klonteig reported the incident to the Fire Chief and human resources.
On October 9, 2013, the District terminated Mr. Klonteig’s employment for cause. At the time of his dismissal, Mr. Klonteig had been a firefighter for approximately 23 years.
THE DECISION
In assessing whether the District had just cause to dismiss Mr. Klonteig, the Court outlined (at para. 60) that:
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.
The Court also considered the “principle of proportionality” in which an effective balance is struck between the severity of the employee’s misconduct and the sanction imposed.
The Court concluded that the District did not have just cause to dismiss Mr. Klonteig. Mr. Klonteig was not representing the District when he engaged in the conduct that led to the suspension of his licence. There was no criminal conviction. The vehicle he was driving, although belonging to the District, was unmarked and there was no public knowledge of Mr. Klonteig’s administrative suspension. There was no evidence before the Court that the public at large would have been offended by Mr. Klonteig’s lack of judgment being sanctioned by a lengthy suspension without pay. Further, Mr. Klonteig was not the “public face” of the fire department rather his role was more administrative in nature.
Overall, Mr. Klonteig’s off-duty conduct was not prejudicial to the interests or reputation of the District.
Mr. Klonteig was awarded with five months’ salary in accordance with his employment contract.
If you have any questions about off-duty conduct please contact any member of the Employment and Human Rights Group.
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Parmar v. Tribe Management Inc., 2022 BCSC 1675 is the first civil court decision to tackle whether an unpaid leave of absence for noncompliance with an employer’s mandatory vaccination policy can be considered constructive dismissal. The issue before the Court was whether Tribe Management Inc.’s decision to place Ms. Parmar on an unpaid leave of absence was reasonable following the implementation of a mandatory vaccination policy given the circumstances of the COVID-19 pandemic at the time. Ms. Parmar refused to be vaccinated due to choice. She did not apply to her employer to be exempt from the mandatory vaccination policy based on medical or religious reasons. The BC Supreme Court found that it was not a constructive dismissal. Instead, it found that Ms. Parmar had repudiated the employment contract. As a result, the claim was dismissed, and Ms. Parmar was not entitled to any damages.
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The COVID-19 pandemic has had a profound impact on the Canadian economy and has resulted in job loss and precarious employment across various sectors. It is yet to be seen however if and how these changes will affect an employee’s entitlement to reasonable notice following a without cause dismissal. In this article, we review recent court decisions addressing the impact of COVID-19 on wrongful dismissal damages.
