Does Impaired Driving While Off Duty Give an Assistant Fire Chief’s Employer Cause to Dismiss Him?

Written on behalf of Arbesman Hamilton LLP

Access to an employer’s vehicle is a privilege that comes with a number of responsibilities, especially when one is allowed to drive the vehicle outside of work hours. An assistant fire chief (the “employee”) recently found himself in hot water with his employer after an incident of impaired driving led to his termination. The Supreme Court of British Columbia was left with the responsibility of determining whether his actions were cause for dismissal.

The employee’s work

The employee is a firefighter who started his career in 1995 after leaving employment in the steel industry. He became the assistant fire chief of West Kelowna in 2008. His employment contract contained the following provision regarding termination:

“If the District of Westside terminates your employment, for any reason other than just cause, you are entitled to notice of termination or severance pay in accordance with the following:

  1. After successful completion of the probation period but prior to the first twelve months of your employment: one (1) month notice or one (1) month salary, at the employer’s option.
  2. After completion of twelve months employment: reasonable notice in accordance with the common law, to a maximum of one month notice or salary in lieu of notice, at the employer’s option, for each completed year of service, to a maximum of twenty four (24) months, and with a minimum of three (3) months notice or salary in lieu of notice.
  3. If you secure other employment during this period, the amount paid to you will be decreased by 50% of the amount outstanding at the time you start working.
  4. Except as restricted by the terms and conditions of a benefit plan carrier, benefit coverage for B.C. M.S.P., extended health, and dental will continue up to the end of the month in which your employment terminates. All other benefits will terminate at midnight on your final day of employment.

You will not be entitled to any further notice, payment or benefits once you have been provided the above-noted severance pay and/or notice.”

The employee had an excellent reputation as a firefighter. His performance evaluations indicated he was either “meeting and often exceeding the job requirements”, or “exceeding the job requirements more than 50% of the time” in each performance category. By 2011 he had reached the top of the pay scale for an assistant fire chief position and was awarded bonuses in lieu of raises.

The bulk of the employee’s time at work was spent in labour relations with the union representing firefighters and human relations. He was also charged with looking after the department’s communication equipment. In short, it was an administrative position.

The court described the employee’s employment record as “unblemished,” adding that the district did not dispute that he was a “valued and exemplary employee.”

The events leading to termination

The employee was off-duty on October 7, 2013 and was returning from a date with his spouse when he was pulled over by the RCMP for suspected impaired driving. The employee failed two roadside breathalyzer tests. As a result, he received a 90-day administrative driving prohibition, and his truck, which belonged to the employer, was impounded.

The next morning the employee met with his manager (the fire chief) and a representative from human resources. Both of them appear to have believed the employee’s driving suspension was for only 24-hours. They learned of the longer suspension later in the day. Once the longer suspension came to light, the matter was kicked up to a more senior official in human resources, and at this time the employee was sent home. The employee thought he was being suspended at this time. Instead, the decision was made either late on October 7, or early on October 8, that the employee would be terminated from his position. The original human resources representative and the employee’s manager asked the Chief Administrative Officer, who made the decision, to reconsider, though he refused over what the court described as “outrage about the potential liability to which (the employee) had exposed the District’s taxpayers and the risk he created for public safety.”

The employee alleged he was wrongfully dismissed and sought an order for payment of 18 month’s severance. He claimed his termination effectively erased his 18 years of experience as a firefighter, and that the manner in which he was dismissed entitled him to additional damages.

The court’s analysis

The court began its analysis by stating “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.”

In this case, it was the employer’s position that the employee’s conduct was incompatible with his duties, especially his responsibility for ensuring public safety.

However, the court did not agree. The decision stated

“While I accept that conduct which occurs while off duty may amount to cause, as was the case in some of the decisions relied on by the (employer), in my view such conduct must be or be likely to be prejudicial to the interests or reputation of the employer. In this case, (the employee) was not representing his employer when he engaged in the conduct that led to the suspension of his licence. The vehicle he was driving, although belonging to the (employer), was unmarked as such. There was no public knowledge of (the employee’s) administrative suspension.

[68]        Further, the conduct was not of the same moral reprehensibility as the possession of child pornography and the attendant extensive publicity which gave rise to cause in Kelly v. Linamar Corp.,[2005] O.J. No. 4899 (S.C.J.), or the consorting with a prostitute on company premises and potential breach of privacy which gave rise to cause in Whitehouse, or the dishonest tax scheme engaged in by a chartered accountant and manager of internal audit at a hospital in Hyland v. Royal Alexandra Hospital2000 ABQB 458 (CanLII).

[69]        I accept that the (employer’s) community members would expect a senior employee, in a department dealing with the protection of the public and public safety, to avoid risk of public harm, I note that (the employee) was not the public face of the Fire Department. That role fell to Chief Schnitzler. (the employee’s) role was more administrative.”

The court ordered the employer to pay the employee damages based on 5 months’ notice (one for each year of service) but did not award him additional damages.

Being fired from a job is a stressful event in one’s life. Additionally, it can also be expensive and time consuming for employers to deal with decisions that are challenged and taken to court. At Arbesman Hamilton LLP, we offer exceptional and experienced legal advice to both employers and employees in all areas of employment law. We help understand their contractual and legal obligations. We also help employees understand if the terms of their contract have been violated or fulfilled when an dispute arises. Please call us at 416-481-5604 or contact us online to see how we can help with your employment law issues today.