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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Unfortunately, quite often terminated employees mistakenly believe that because their employer has offered them the minimum amount of severance pay (notice) under the BC Employment Standards Act that their legal entitlement ends there. Typically, that is not the case. In this post, we look at what it means to be wrongfully dismissed and whether a terminated employee is entitled to reasonable notice.
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In addition to the amendments to the Employment Standards Act that were discussed in our last blog entry, the B.C. government has introduced a new Employer Health Tax (the “EHT”) in January of this year. The government hopes that the EHT will help their efforts to eliminate the Medical Service Plan premiums paid by all individuals. With this new tax, the government hopes to completely eliminate MSP premiums by January 2020.
