In the recent decision of Klonteig v. West Kelowna (District), 2018 BCSC 124, the BC Supreme considered when an employer could terminate the employment relationship based on off-duty conduct.
Mr. Klonteig was the Assistant Fire Chief for the City of West Kelowna (the “Employer”). Prior to taking up the position with the Employer, he had worked for the City of Kelowna for 13 years. In all, Mr. Klonteig had been a firefighter for about 23 years.
In the early morning hours of October 7, 2013. as he was driving home with his wife, Mr. Klonteig was pulled over by an RCMP officer on suspicion of impaired driving. At the time, Mr. Klonteig was driving the vehicle of the Employer’s Fire Chief even though he was off duty. When Mr. Klonteig failed a roadside breathalyzer test twice, the officer impounded the vehicle and issued Mr. Klonteig a 90-day administrative driving prohibition.
Mr. Klonteig reported the incident to the Fire Chief later that same day after which he and the Fire Chief met with the Employer’s Human Resources Advisor (HR Advisor). Initially, the Employer thought that Mr. Klonteig had received a 24-hour suspension. When it found out that the suspension was for 90 days, the matter was escalated to the Chief Administrative Officer (CAO). The CAO decided to terminate Mr. Klonteig’s employment despite the objections of the Fire Chief and the HR Advisor who urged him to consider a lesser form of discipline.
Mr. Klonteig was considered to be an exemplary employee and had no prior disciplinary record. Additionally, Mr. Klonteig was very forthright, honest, distraught and remorseful about what had happened. Mr. Klonteig was 48 years old at the time his employment was terminated.
Mr. Klonteig sued the Employer for wrongful dismissal and the issue before the court was whether the Employer had cause to dismiss Mr. Klonteig.
The Court noted that off-duty conduct could give rise to a just cause termination if the conduct in question was, or was likely to be, prejudicial to the interests or reputation of the employer. The court stated at paragraph 60:
“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 reviewing the case, the court noted the following: the vehicle Mr. Klonteig was driving at the time of the off-duty incident was not marked as a City of West Kelowna vehicle; there was no public knowledge of Mr. Klonteig’s administrative suspension; and Mr. Klonteig held an administrative, as opposed to a public-facing, role. The court also took note of the fact that 24 of Mr. Klonteig’s peers had signed a letter supporting him, stating that members of the public were unlikely to lose confidence in Mr. Klonteig, if his peers still supported him.
The court also considered the fact that the officer had imposed an administrative license suspension on Mr. Klonteig instead of a criminal charge and commented that there was no evidence that “the public at large would have been offended by Mr. Klonteig’s lack of judgment being sanctioned by a lengthy suspension without pay.”
Based on all of the above factors, the court found that the Employer did not have just cause to terminate Mr. Klonteig and awarded him severance pay based on the termination clause in his contract of employment.
• Employers can terminate employees for cause, for off duty misconduct.
• In order for a just cause termination on the basis of off-duty conduct to be upheld, the conduct must be, or must likely be, prejudicial to the interests or reputation of the employer.
• While each case must be assessed on its own merits, the following factors are relevant:
o the degree of moral reprehensibility of the conduct
o the nature of the charge against the employee; for example, whether it is a criminal charge, an administrative penalty, or a civil charge
o the trust and confidence placed by the public in the employee’s role
o whether the public is aware of the misconduct
o whether the employee’s role is administrative or public-facing
o peer support of the employee, or lack thereof