Canadian HR Reporter

CANADIAN HR REPORTER February 22, 2016 EMPLOYMENT LAW 5 Jeffrey Smith Legal View This is more than a phone book. It is your instant connection to Canada's legal network. With Canadian Law List 2016 you have access to: • an up-to-date alphabetical listing of more than 80,000 barristers, solicitors and Quebec notaries, corporate counsel, law fi rms and judges across Canada • all contact information supplied for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown Corporations • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid and other important law-related offi ces THE LATEST CONTACT INFORMATION IN A USER- FRIENDLY FORMAT THAT IS BEYOND TRADITIONAL LISTINGS Continually updated by a dedicated team of professionals, Canadian Law List includes value added features such as: • last name fi rst identifi cation in the federal and provincial listings • separate section of corporate law departments for more than 1,250 companies • professional cards of prominent Canadian law fi rms • International Agency Referral Cards Hardbound • Published February each year • L88804-765 • On subscription $169* • One time purchase $188* Multiple copy discounts available * Plus shipping/handling and applicable taxes KEEPING PACE WITH THE CHANGING LEGAL COMMUNITY FOR OVER 130 YEARS Manager's drink at lunch not a breach of vague zero tolerance policy: Court Alcohol on auto manager's breath leads to months of allegations, vague threats — but ends up with $48,000 in wrongful dismissal damages in Ontario An Ontario employer's vague policy and un- substantiated allegations were not enough to constitute just cause to dismiss an em- ployee for drinking on the job, the On- tario Superior Court of Justice has ruled. Larry Volchoff, 66, had been a manager at Wright Auto Sales, an automobile dealership in Cam- bridge, Ont., since 2012. Volchoff ran the dealership, conducted his own sales and supervised staff at the dealership. He scheduled his own hours but worked six days per week. During Volchoff 's ten- ure, the dealership increased its sales. As part of his duties, Volchoff had to attend managers' meet- ings with Wright Auto Sales' operations manager in nearby Waterloo, Ont., every Wednes- day afternoon at 3 p.m. Volchoff usually had lunch at a restaurant in Waterloo, including a glass of wine, before going to the meeting. No one raised any concerns or complaints about Volchoff 's prac- tice of having a glass of wine until Feb. 12, 2014, when the reception- ist in Waterloo smelled alcohol on his breath when he arrived for the weekly meeting. e smell wasn't strong and there was no indica- tion Volchoff was intoxicated, but the receptionist told another manager Volchoff "may want to use a breath mint." After the meeting, the opera- tions manager and the control- ler asked Volchoff if he had been drinking. Volchoff said he had a glass of wine at lunch but noth- ing else. e operations manager said they and other employees could smell alcohol on his breath and while he couldn't tell Volchoff what he could or couldn't do at lunch, he had to be responsible with alcohol at work. Nothing 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 Volchoff couldn't continue to have a glass of wine at lunch before the managers' meetings. e controller claimed she told Volchoff there would be "reper- cussions" if he continued to drink alcohol during work hours but the operations manager did not say this and didn't instruct any- one that was the case. Volchoff got the impression that having a glass of wine at lunch before the weekly managers' meeting wasn't prohibited, but he had to be re- sponsible 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. Often when he did this, he would have one or two glasses of wine. While he didn't have enough wine to feel intoxi- cated, he made sure that if he stopped back at the Cambridge dealership, he wouldn't do work or deal with customers. Instead, he just checked in with staff before he went home. Customer complaint On March 10, 2014, Volchoff was called to the Waterloo office and told by the operations manager and the controller that a custom- er had complained Volchoff was drunk in the dealership on the previous Sunday afternoon. Vol- choff denied he had consumed any alcohol that day. e operations manager told Volchoff there was a zero toler- ance policy for drinking 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 maintained that the only al- cohol he consumed during work- ing hours was the glass of wine at lunch on Wednesdays before the managers' meeting. ree months later, on June 11, Volchoff was called to the Water- loo office once again. Once there, 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 intoxicated. Volchoff was shocked and im- mediately denied the accusations. Management refused to give him any details on the accusations or who made them, but told Vol- choff they were going to investi- gate. 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 sub- stance abuse problem, Volchoff denied it. e suspension letter indicated he would be given an opportunity to answer the allega- tions 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 mem- bers were withheld as the com- pany didn't want to jeopardize Volchoff 's relationship with them if he returned to work. However, he was given a termination letter without being given any specifics or a chance to respond. No warnings or details 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 Wednesdays. 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 re- sult, 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 he had a glass of wine at lunch that day as well as at subsequent meet- ings with Wright management. However, there were no signs Volchoff was actually intoxicated — no slurred speech, no difficul- ties with balance, or any other indications. e other allegations that fol- lowed — the customer complaint and the accusations that Volchoff was drunk at work and drove a company vehicle — were "third- hand hearsay" for which no de- tails were given to Volchoff that he could respond to. Instead, he could only continue to deny the allegations and there was little real evidence to sup- port just cause for dismissal, said the court. e court also noted that none of Volchoff 's staff complained to Volchoff before they allegedly complained to upper manage- ment. In fact, as it turned out, the dealership's staff complained in June 2014 that Volchoff had changed Internet sales leads whereby he took them rather than distributing them to the sales staff. But there was no indication this complaint referred to Volchoff consuming alcohol during work hours, and some staff members who testified said they never had difficulties working with him. The court found there were no specific allegations made by staff members that Volchoff was intoxicated at work and Wright Auto Sales had no evidence be- yond the smell of alcohol on Vol- choff 's breath. Volchoff explained the reason for the smell and there was nothing indicating his ability to do his job was hindered, said the court. The court also found that if Wright's Auto Sales had a zero tolerance policy regarding alcohol consumption during work hours, Volchoff wasn't given any infor- mation about it and the policy "at best, was ambiguous." Volchoff was told to be responsible at work, which he understood and acted accordingly, 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 consumed alcohol during work hours other than on the weekly Wednesday meeting days. Volchoff only had two-and-a- half years of service at the dealer- ship but held an important posi- tion, so the court ruled he was en- titled to five months' notice. After deductions 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.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. Nothing was mentioned about a zero tolerance policy towards alcohol, nor had one been in place during Volchoff 's time with Wright Auto Sales.

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