Canadian HR Reporter

CANADIAN HR REPORTER MAY 2018 NEWS 13 Firefighter's off-duty driving suspension doesn't warrant termination Incident didn't irreparably harm employment relationship: B.C. Supreme Court BY JEFFREY R. SMITH FAILING two breathalyzer tests while driving off-duty and a 90- day driving suspension did not provide just cause to dismiss a well-respected and accomplished firefighter, the Supreme Court of British Columbia has ruled. In 2013, Kerry Klonteig was assistant fire chief for the West Kelowna District. His contract contained a termination clause that stated after 12 months of em- ployment, he would be entitled to "a maximum of one month's no- tice or salary in lieu of notice, at the employer's option, for each completed year of service, to a maximum of 24 months, and with a minimum of three months' no- tice or salary in lieu of notice, for without-cause termination." Klonteig's annual performance reviews were good and he often received ratings of "meeting and often exceeding the job require- ments." e fire chief acknowl- edged Klonteig's status as an "ex- emplary employee" and he was well-respected by staff. Off-duty incident In the early morning of Oct. 7, 2013, Klonteig was off-duty and on his way home after a night out with his spouse when he was pulled over by a police officer who suspected him of impaired driv- ing. Klonteig was driving the fire chief 's pickup truck but it had no indications it belonged to the dis- trict or its fire service, other than a fleet number on the tailgate. Klonteig failed two roadside breathalyzer tests, so the vehicle was impounded and he received a 90-day administrative driving prohibition. Later that same day, Klonteig reported the incident to the fire chief and they went to the district office to talk to HR. He was "dis- traught and remorseful," and said he thought he wasn't impaired. The fire chief and HR advi- sor escalated the matter to West Kelowna's chief administrative officer (CAO) and sent Klonteig home on suspension. But the CAO felt Klonteig had exposed the dis- trict to potential liability and had endangered public safety, and he recommended termination. The fire chief and HR advi- sor pushed for lesser discipline, pointing out that the majority of the firefighters had signed a letter of support for Klonteig, he wasn't charged and he had an excellent service record — but the CAO wouldn't change his mind. Klon- teig was given a termination letter on Oct. 9, 2013. The letter stated Klonteig should have been aware he should not have been driving the fire chief 's truck for personal reasons and should not have been con- suming alcohol while driving a district vehicle. It concluded that due to the incident, "it will be im- possible for you to regain the nec- essary respect of the members of the department" and his actions were incompatible with his duty to ensure public safety. e fire chief and HR advisor told Klonteig they would give him a written reference letter, but the district's legal counsel advised against that in favour of providing a verbal reference. Klonteig was successful in ap- plying for employment insurance (EI) benefits as the EI commission determined his reason for loss of employment was not misconduct. He applied for several other fire- fighting jobs, but was unsuccessful. He eventually found other work. Klonteig filed a claim for wrong- ful dismissal, demanding 18 months' pay in lieu of notice plus additional damages for the man- ner in which he was terminated and the district's failure to provide him with a reference letter. Court weighs in e court noted that for off-duty conduct to provide just cause for dismissal, it "must be or be likely to be prejudicial to the interests or reputation of the employer." In Klonteig's case, he wasn't rep- resenting the district or the fire department when he was pulled over, and the truck wasn't marked as belonging to the district. e court agreed that it was fair for the district to expect a senior employee in a department tasked with protecting public safety to avoid the risk of public harm, but Klonteig wasn't a public face of the fire department and his conduct didn't cause the full-time firefight- ers to lose confidence in him. The court determined Klon- teig's off-duty conduct didn't preclude him from effectively performing his job duties, nor did it negatively affect the interests or reputation of the West Kelowna district or its fire department. As a result, there was no cause for dismissal. However, the failure to provide reference letters wasn't proven to be the reason Klonteig couldn't find employment in the firefight- ing field, found the court. Nor did the district do any- thing to attack his reputation or misrepresent the reason for his termination — the termination letter made it clear why Klon- teig was being dismissed. As a result, there was no bad faith in the manner of Klonteig's dis- missal and no reason for his no- tice entitlement to be more than that provided for in the termina- tion clause of his employment contract — a maximum of one month per year of employment. The district was ordered to pay Klonteig five months' salary, equal to $42,325, as required for termination without cause under his contract. For more information, see: • Klonteig v. West Kelowna (District), 2018 CarswellBC 126 (B.C. S.C.). 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