A recent decision out of Kelowna, B.C., found a long-term West-Kelowna firefighter, Kerry Klonteig, to be wrongfully terminated after he was arrested for impaired driving in a Fire Department vehicle while off-duty.
The plaintiff in Klonteig v. District of West Kelowna, 2018 BCSC 124, who had been a firefighter for the District of West Kelowna for over 13 years, was issued a 90-day administrative driving prohibition in the early morning hours of October 7, 2013 after he failed a roadside breathalyzer test twice. At the time of the incident he was off duty but was driving a District vehicle allocated to the Fire Chief. As a result of the failed tests, the vehicle was towed and impounded. Shortly after the incident, the District of West Kelowna terminated the plaintiff’s employment for cause.
The Termination Letter From the Fire Department
The termination letter, which the District of West Kelowna had given to the plaintiff set out the following:
“You were aware that you should not have been driving the Fire Chief’s truck for a personal evening out, let alone when you would be consuming alcohol. This is a very serious incident as you were driving a District vehicle while impaired and consequently posed a threat to the safety of yourself and others travelling on the roads that evening. As well, the District vehicle was impounded. This is simply unacceptable for someone in your position whose job is to protect public safety.
This incident also reflects poorly on our Department and the District. You are a leader in the Fire Department and this incident displays an extremely poor use of judgment on your part. We recognize that you showed remorse, but it will be impossible for you to re-gain the necessary respect of the members of the Department. Your conduct has irreparably harmed the employment relationship. Therefore, the District has decided that it has no choice but to terminate your employment for just cause.”
Let’s Analyze the Facts of this Employment Case
In its analysis of the case, the court held:
[65] In this case, the District argues that Mr. Klonteig’s conduct was incompatible with his duties, in particular, his responsibility for ensuring public safety, and incompatible with the District’s “business” in that it put the taxpayers at risk for substantial exposure.
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[67] While I accept that conduct which occurs while off duty may amount to cause, as was the case in some of the decisions relied on by the District, in my view such conduct must be or be likely to be prejudicial to the interests or reputation of the employer. In this case, Mr. Klonteig was not representing his employer when he engaged in the conduct that led to the suspension of his licence. The vehicle he was driving, although belonging to the District, was unmarked as such. There was no public knowledge of Mr. Klonteig’s administrative suspension.
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[72] I therefore conclude that Mr. Klonteig’s off-duty conduct was not incompatible with his faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the District, and that his termination was without cause.
However, despite the fact that the plaintiff had been wrongfully terminated from his position and had been unable to find suitable alternative employment as a firefighter ever again, the court limited his damages for termination to the amounts dictated by the employment agreement, which provided:
“If the District of Westside terminates your employment, for any reason other than just cause, you are entitled to notice of termination or severance pay in accordance with the following:
- After successful completion of the probation period but prior to the first twelve months of your employment: one (1) month notice or one (1) month salary, at the employer’s option.
- After completion of twelve months employment: reasonable notice in accordance with the common law, to a maximum of one month notice or salary in lieu of notice, at the employer’s option, for each completed year of service, to a maximum of twenty four (24) months, and with a minimum of three (3) months’ notice or salary in lieu of notice.
- If you secure other employment during this period, the amount paid to you will be decreased by 50% of the amount outstanding at the time you start working.
- Except as restricted by the terms and conditions of a benefit plan carrier, benefit coverage for B.C. M.S.P., extended health, and dental will continue up to the end of the month in which your employment terminates. All other benefits will terminate at midnight on your final day of employment.
You will not be entitled to any further notice, payment or benefits once you have been provided the above-noted severance pay and/or notice”.
Employers Need to Consider Off Duty Conduct
Accordingly, the plaintiff’s damages were limited to only five months’ salary less employment insurance benefits received during that period.
The case provides a couple of interesting points for employers to consider when determining whether to terminate an employee. First, off-duty conduct of an employee, while even if reprehensible and inconsistent with the terms of the employment is not necessarily sufficient to establish “just cause” for termination. While some off-duty conduct may justify “just cause”, incidents should be assessed from a factual and legal stand point in order to determine if the conduct really adversely affects the employment relationship sufficiently to justify “cause”.
Secondly, although the court found that the plaintiff had been wrongfully terminated, notice liability for the employer was significantly reduced by reliance on a legally enforceable employment agreement. If there had been no employment agreement in this case, it is likely that the plaintiff would have been entitled to approximately 16 – 18 months’ of pay in lieu of notice rather than only 5 months, based on his age, seniority and length of service. Again, this case serves to demonstrate the importance of having a valid, well drafted and legally enforceable employment agreement.
Scott Chambers is an Employment and Human Resources lawyers at Doak Shirreff Lawyers LLP.
Scott can be reached at [email protected] or 250-979-2527. You can also follow Scott on twitter at @DSEmploymentLaw and on LinkedIn at www.linkedin.com/in/scottdchambers.