A. INTRODUCTION
The dangers of drinking and driving are well known. When
an employee drinks and drives on the job, it also becomes a workplace issue.
Not only does drinking and driving present a hazard to the employee and those
around him, it is also a significant liability issue for an employer, including
charities and not-for-profits, especially if a work vehicle is being operated.
The recent decision of the Ontario Superior Court of Justice, Dziecielski
v. Lighting Dimensions Inc., 2012 ONSC 1877, has confirmed that an employee may be dismissed for drinking and driving even
if the employee had no prior disciplinary issues. This Charity Law Bulletin discusses
this decision, and analyzes how it may affect Ontario employers.
B. THE FACTS
Jaroslaw Dziecielski was a high school graduate with two
years of university studies who worked for a small privately held business in
Toronto that produced fabricated materials and fixtures for the automotive
industry. Mr. Dziecielski began his employment as a labourer, and after
twenty-three years moved up to the position of the Vice-President responsible
for quality control and standards compliance.
On April 23, 2007, Mr. Dziecielski travelled to visit a
client in Alliston, Ontario. On his way back from his client call, Mr. Dziecielski
decided to detour off his route back to work and stopped for lunch north of
Toronto, at which time he consumed four beers. After lunch, Mr. Dziecielski returned
back to the city, and on his way was involved in a single-vehicle accident in
which he was severely injured and the company car he was driving (without
permission) was destroyed. Mr. Dziecielski was charged with numerous criminal
offences relating to drunk driving and one month later pled guilty to one
charge under the Criminal Code.
Mr. Dziecielski attempted to return to work five days
after the accident, but agreed with his employer that it was too early to do so
because of his injuries. Subsequently, on May 23, 2007, before he even pled to
the above charge, Mr. Dziecielski’s employer wrote and informed him that his
employment was terminated with cause. The reasons for his dismissal were that Mr.
Dziecielski had driven the company vehicle without authorization, had caused extensive
damage to the vehicle and had pending criminal charges for being under the
influence of alcohol or drugs. Furthermore, Mr. Dziecielski had breached the
provisions of the Employee Handbook that indicated that “any consumption of
alcohol off of the premises while conducting business is prohibited and could
result in termination of employment” and that indicated “consuming alcohol on
the job was a violation of a “Major” rule and could result in termination.”
Mr. Dziecielski was aware of the Employee Handbook provisions and had
acknowledged his agreement to them when he signed the Handbook in 1998. Mr. Dziecielski
was a model employee, had a clean record of discipline, no complaints about his
performance and “no concern about the use of alcohol or unsafe conduct
generally.”
Mr. Dziecielski commenced a lawsuit for wrongful dismissal,
claiming punitive, aggravated and exemplary damages, and compensation based on a
twenty-four month period of reasonable notice. His employer in response alleged
cause and alternatively that the employee failed to adequately mitigate his
losses. In its decision, the Court assessed whether Mr. Dziecielski’s
dismissal was proportional to his misconduct and whether the punishment was too
harsh in relation to the misconduct. The Court found that the employer had
waited a sufficient amount of time before dismissal, had a full appreciation of
all of the facts and circumstances, that Mr. Dziecielski was guilty of serious
misconduct in the course of employment, and that his conduct was prejudicial to
the employer’s business. As a result, the Court dismissed Mr. Dziecielski’s
claim for wrongful dismissal and awarded the employer $28,898.83 in partial
indemnity costs.
C. THE LAW
There is no obligation on an employer to conduct a formal
investigation before dismissing an employee for cause. However, the employer
must “have regard to all the facts necessary for a full and fair understanding
of what occurred.” Although an employee may not have a right to a certain procedure, they still
have the right to expect that their employer will use all relevant facts and
considerations before making their decision. Single, isolated events do not
generally give sufficient cause to dismiss long term employees, especially those
with clean service records; however, if the event is “particularly egregious”
an employer can justify termination for cause.
Intoxication at work, however, is not necessarily an
automatic justification for termination. The nature of the work and the
circumstances around the situation must first be analyzed before “just cause”
will be allowed. The relationship between the conduct and the essential
features of the work will need to be determined before an employer can reach a
decision to dismiss for cause. For example, an employer would have just cause
to immediately terminate a pilot who is intoxicated whereas that would not be
the case with an intoxicated employee whose job involves socializing with
clients.
D. JUSTIFYING DISMISSAL
In order to determine whether an
employee’s misconduct justifies a dismissal, the following factors will
be analyzed by a court:
· whether the employee was guilty of serious misconduct;
· whether the employee’s impugned behaviour or act was merely
conduct with which the employer disagreed, or “trifling causes”, rather than transgressions
or misconduct which any reasonable person could not overlook;
· whether the employee’s misconduct was inconsistent with or
prejudicial to the employer’s business, and therefore in breach of an implied
term of the employment agreement;
· whether the employee’s misconduct was in breach of an express
provision of the employment agreement; and
· whether the misconduct merely reflects the employee’s poor
judgment or inadvertence.
In the case where criminal conduct has
occurred, the court will also look at the following:
· whether the employee was culpable for the alleged criminal
conduct, or misconduct of a criminal nature;
· whether the conduct was prejudicial to the employer’s legitimate
business interests;
· whether the conduct was in breach of the implied duty of
fidelity, or fiduciary duty, or an express condition of employment, and
therefore in breach of the employment agreement;
· whether there is evidence of actual harm or evidence substantiating
potential harm to the employer.
E. CONCLUSION
For employers, including charities and not-for-profits,
the Dziecielski decision indicates that civil
courts will take drinking and driving on the job seriously. In addition to
criminal prosecution, employees who drink and drive on the job are at risk of
losing their jobs. For charities and not-for-profits whose employees drive
either their own or a corporate vehicle on the job, this decision highlights
the importance of having policies in place which promote safe driving practices
and that prohibit any alcohol or drug use while on the job. The consequences
of non-compliance, up to and including termination, should also be clearly stated
in the employer policies.