The employee, a 45-year-old Vice President with 23 years of service at a small privately held Toronto-based business, drove the company’s pickup truck to a meeting in Alliston, Ontario. After the meeting, the employee stopped at a restaurant where he drank four beers during lunch. He then got back in the truck and drove towards Toronto. While driving, the employee lost control of the truck and was involved in an accident, sustaining a broken neck and other life threatening injuries. Fortunately, no other vehicles were involved in the crash. The police subsequently charged the employee with a number of criminal offences related to drunk driving. The employee pled guilty to one of the charges. After the employee was released from hospital, the employer informed him that his employment was terminated for just cause. The employee sued the employer for wrongful dismissal.
Justice Whitaker of the Ontario Superior Court of Justice stated that a single isolated incident of intoxication does not generally warrant just cause for dismissal. However, as in all just cause allegations, a contextual approach must be applied. Justice Whitaker considered the following factors in the employee’s favour: the employee was middle aged, without a university degree or other certification, and had spent most of his working life with the employer. The employee also had a clean record of discipline and no performance issues prior to the incident.
From the employer’s perspective, the employee was guilty of serious misconduct in the course of employment while operating the employer’s vehicle and which attracted criminal sanction. Justice Whitaker stated:
Increasingly, drunk driving is considered now within society at large to be a very serious criminal offence which attracts significant minimum sentences. Drunk driving is potentially lethal conduct and in this case the employee is extremely lucky to have survived and to not have injured or killed others travelling on the public highway. To reiterate, the misconduct here is not just intoxication while working, but rather drunk driving on a public highway with the employer’s vehicle.
Justice Whitaker held that the employee’s conduct was prejudicial to the employer’s business. Specifically, the employee’s conduct put the employer at risk of claims from third parties of vicarious liability, as well as increased WSIB premium costs. In addition, Justice Whitaker noted that the employer’s customers and suppliers might think less of the employer if they were of the view that the employer could not properly control and direct its employees. Furthermore, the employee’s conduct also damaged the employer’s property.
On balance, Justice Whitaker concluded that the employer had met its onus of demonstrating just cause for dismissal of the employee and the employee’s claim was dismissed with costs payable to the employer on a partial indemnity basis. This case confirms that it is possible for an employer to successfully claim just cause in order to defend against a wrongful dismissal claim made by a long-service employee if the employee has engaged in a single, serious, incident of misconduct.
Dziecielski v. Lighting Dimensions Inc.: http://www.canlii.org/en/on/onsc/doc/2012/2012onsc1877/2012onsc1877.html