slurred speech, no difficulties with balance,
or any other indications.
e other allegations that followed — the
customer complaint and the accusations
that Volchoff was drunk at work and drove
a company vehicle — were "third-hand
hearsay" for which no details were given
to Volchoff for him to respond to. Without
anything specific to address, Volchoff could
only continue to deny the allegations and
there was little real evidence to support just
cause for dismissal, said the court.
e court also noted that none of Vol
-
choff 's staff complained to Volchoff before
they allegedly complained to upper man-
agement. In fact, as it turned out, the deal-
ership's staff complained in June 2014 that
Volchoff had changed Internet sales leads so
he took them instead of distributing them to
the sales staff. ere was no indication this
complaint referred to Volchoff consuming
alcohol during work hours, and some staff
members that testified never had difficulties
working with him.
e court found there was no specific al
-
legations made by staff members that Vol-
choff was intoxicated at work and Wright
Auto Sales had no evidence beyond the
smell of alcohol on Volchoff 's breath. Vol-
choff had explained the reason for the smell
and there was nothing indicating his ability
to do his job was hindered, said the court.
e court also found that if Wright's
Auto Sales had a zero tolerance policy re
-
garding alcohol consumption during work
hours, Volchoff wasn't given any informa-
tion about it and it "at best was ambiguous."
Volchoff was told to be responsible at work,
which Volchoff understood and made sure
he was, said the court.
In addition, the court noted Volchoff was
"a trusted employee whose work record was
excellent" and "at no time was he warned
that his job was in jeopardy or that his
breach of this rule in the future could lead
to his dismissal."
e court determined Wright Auto Sales
did not have sufficient evidence to prove it
had just cause to dismiss Volchoff. In fact,
there was no evidence Volchoff ever con
-
sumed alcohol during work hours other than
on the weekly Wednesday meeting days.
Volchoff only had two-and-a-half years
of service at the dealership but held an im
-
portant position, so the court ruled he was
entitled to five months' notice. After deduc-
tions for Volchoff 's earnings from another
job he found within the notice period, this
amounted to $48,557.68.
For more information see:
• Volchoff v. Wright Auto Sales Inc., 2015
CarswellOnt 19856 (Ont. S.C.J.).
Canadian HR Reporter, a Thomson Reuters business 2016
CREDIT:
NATALIA
VAN
DONINCK/SHUTTERSTOCK
February
17,
2016
|
Canadian
Employment
Law
Today
ABOUT THE AUTHOR
JEFFREY R. SMITH
Jeffrey R. Smith is the editor of Canadian
Employment Law Today. He can be reached at
jeffrey.r.smith@thomsonreuters.com, or visit www.
employmentlawtoday.com for more information.
