What is the appropriate sanction for an employee who is caught driving while impaired in a company vehicle? Should they be fired? The answer might seem obvious (fire them!), but employers need to be careful about making such impulsive reactions. They must consider all of the circumstances before making that call.
In the recent case of Klonteig v. District of West Kelowna, 2018 BCSC 124, the Supreme Court of British Columbia held that it was not appropriate to fire the employee. In this case, Mr. Klonteig was an Assistant Fire Chief with the City of Kelowna. He was off duty but was driving a city-owned vehicle with the permission of the Fire Chief. Throughout his 13-year career as a Kelowna firefighter, including his years as Assistant Fire Chief, Mr. Klonteig was an exemplary employee and had a pristine disciplinary record. The evidence showed that he was very well respected by the Kelowna firefighters, including those in the upper ranks. The court found that, by all accounts, Mr. Klonteig “was a valued and exemplary employee”.
While driving home in the Chief’s pick-up truck from an evening out with his wife, Mr. Klonteig was pulled over by the RCMP for suspected impaired driving. He failed two roadside breathalyzer tests and received a 90-day administrative driving suspension. He immediately reported this to his superior, the Fire Chief. He had a series of discussions with the Fire Chief and other City administrative staff and was ultimately fired. He was unable to find work as a municipal firefighter following his termination.
The decision to fire Mr. Klonteig was made by the city’s Chief Administrative Officer (the “CAO”) over the protests of both the Fire Chief and the City’s human resources advisor, who urged the CAO to consider a less severe punishment. Both the Fire Chief and the human resources advisor testified that the incident was entirely out of character for Mr. Klonteig, who was remorseful and who testified that he did not think that he was impaired and thought that he was capable of driving that night. Mr. Klonteig admitted that he was wrong about his own judgment as to his impairment. The Fire Chief and the human resources advisor made multiple attempts to convince the CAO to change his mind and impose a less severe penalty. They even advised the CAO that 24 of the 28 firefighters in Mr. Klonteig’s local union chapter had signed a letter of support for him, but the CAO still refused to reconsider Mr. Klonteig’s firing.
In determining whether his dismissal was wrongful, the court examined Mr. Klonteig’s conduct in light of the fact that the fire department’s role includes responding to accident scenes involving impaired drivers. The court also addressed the issue of the expectations of community members of people in Mr. Klonteig’s role, which was more administrative in nature than that of the Fire Chief (who was the “public face” of the department) and that Mr. Klonteig’s colleagues in the department had not lost any confidence in him, as stated in their letter of support. The court also recognized that the RCMP officer chose to issue Mr. Klonteig an administrative license suspension instead of a criminal charge, which has fewer consequences (i.e., it does not appear as a criminal charge on Mr. Klonteig’s record) and is therefore arguably less severe of a reprimand for the conduct at issue.
Considering all of these factors, the court found that there was no evidence that giving Mr. Klonteig a lengthy suspension without pay instead of firing him would have offended the public at large. The court also distinguished firefighters from police officers, “who are in a unique position with respect to public trust and confidence in their ability to discharge their duties, and the expectations which fall on other municipal employees”. The court concluded that Mr. Klonteig’s conduct “was not incompatible with his faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the [City], and that his termination was without cause”.
The court awarded Mr. Klonteig with pay in lieu of notice in accordance with his employment contract, which the court held to be five months, less the employment insurance benefits that he received during the five-month period following his termination.
Employers should take care before firing an employee for conduct of this (or any) nature, and are advised to seek legal advice as appropriate.