Canadian Employment Law Today

A drink at lunch doesn't breach 'vague' zero tolerance policy: Court Alcohol on employee's breath at meeting launches months of allegations and vague threats against him — and $48,000 in wrongful dismissal damages BY JEFFREY R. SMITH A n Ontario employer's vague policy and unsubstantiated allegations were not enough to constitute just cause to dismiss an employee for drinking on the job, the Ontario Superior Court of Justice has ruled. Larry Volchoff, 66, was a manager of Wright Auto Sales, an automobile dealership in Cambridge, Ont., starting in August 2012. Volchoff rain the dealership, conducted his own sales and supervised the staff at the dealership. He scheduled his own hours but worked six days per week. During Volcho - ff 's tenure, the dealership increased its sales As part of his duties, Volchoff had to at- tend managers' meetings with Wright Auto Sales' operations manager in nearby Water- loo, Ont., every Wednesday afternoon at 3 p.m. He usually had lunch at a restaurant in Waterloo before going to the meeting, often consuming a glass of wine. No-one raised any concerns or com - plaints about Volchoff 's practice of having a glass of wine at lunch until Feb. 12, 2014, when the receptionist in Waterloo smelled alcohol on his breath when he arrived for the weekly meeting. e smell wasn't strong and there was no indication Volchoff was intoxicated, but the receptionist told an - other manager that Volchoff "may want to use a breath mint." After the meeting, the operations man- ager and the controller asked Volchoff if he had been drinking. Volchoff replied that he had a glass of wine at lunch but nothing else. e operations manager said they and other employees could smell alcohol on his breath and, though he couldn't tell him what he could or couldn't do at lunch, he had to be responsible with alcohol at work. Noth - ing was mentioned about a zero tolerance policy towards alcohol, nor had any been in place during Volchoff 's time with Wright Auto Sales. In addition, they didn't say Vol - choff couldn't continue to have a glass of wine at lunch before the managers' meet- ings. e controller claimed she told Volchoff there would be "repercussions" if he con- tinued to drink alcohol during work hours, but the operations manager did not and he also didn't instruct anyone else that was the case. Volchoff got the impression that having a glass of wine at lunch before the weekly managers' meeting wasn't prohibit - ed, but he had to be responsible and not be intoxicated during work hours. As a result, he continued his weekly lunchtime practice. Sometimes, after the meeting, Volchoff would go to the same restaurant to grab a snack or get takeout food on the way home. Often when he did this, he would have one or two glasses of wine. He didn't have enough wine to feel intoxicated, but he still made sure that if he stopped back at the Cambridge dealership after his Waterloo trips, he wouldn't do work or deal with cus - tomers. Instead, he just asked the staff what was going on before he went home. Accusations of drinking on the job On March 10, 2014, Volchoff was called to the Waterloo office and told by the op- erations manager and the controller that a customer had complained that Volchoff was drunk in the dealership on the pre- vious Sunday afternoon. Volchoff denied he had consumed any alcohol that day. e operations manager told Volchoff there was a zero tolerance policy for drink- ing alcohol on work premises during work hours. However, there was no such policy in writing anywhere in the company, so Volchoff didn't understand what they were talking about or that they were telling him he couldn't have a drink at lunch. He main - tained that the only alcohol he consumed during working hours was the glass of wine at lunch on Wednesdays before the manag- ers' meeting. ree months later, on June 11, Volcho- ff was called to the Waterloo office once again. Wright management informed him that staff at the Cambridge dealership had accused him of driving a company vehicle while impaired and being at work while in - toxicated. Volchoff was shocked and immediately denied the accusations. Management re- fused to give him any details on the accusa- tions or who made them, but told Volchoff they were going to investigate. Volchoff was suspended for one week with pay and told again there was a zero tolerance policy at Wright Auto Sales. When asked if he had a substance abuse problem, Volchoff denied it. e suspension letter indicated he would be given an opportunity to answer the alle - gations at a meeting on June 16. At the next meeting, Wright management told Volchoff they had statements from staff and proof that the allegations were true. e names of the staff members were still with - held as the company didn't want to jeopar- dize Volchoff 's relationship with them if he returned to work. However, he was given a termination letter without getting any spe- cifics or a chance to respond. No warnings or details of allegations Volchoff admitted he drank one glass of wine before the Wednesday managers' meetings and sometimes one or two after, but he never drank on company premises or at any time other than Wednesday. None of his staff had ever mentioned any concerns to him about alcohol consump- tion and he was never told not to have alcohol at lunch. As a result, he filed a claim for wrongful dismissal. e court found it was likely Volchoff had the smell of alcohol on his breath at the Feb. 12, 2014, meeting, as he admitted that he had a glass of wine at lunch that day as well as at subsequent meetings with Wright management. However, there were no signs that Volchoff was actually intoxicated — no EMPLOYEES who drink on the job can be a serious problem for employers that should be addressed promptly. However, like all instances of employee misconduct, the employer has an obligation to investigate properly so it knows as much of the facts as possible so it can determine its course of action. And in most instances of misconduct investigation and determining just cause for dismissal, hearsay won't cut it. It's also important for employers to make sure employees know when something is specifically prohibited. A policy banning certain behaviours by employees is all fine and good, but isn't worth much if employees aren't told about it — especially if the policy is a zero-tolerance one. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: WRONGFUL DISMISSAL

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