The British Columbia Supreme Court’s decision in Klonteig v West Kelowna (District), 2018 BCSC 124 [Klonteig] recently provided guidance on when off-duty conduct may justify termination of an employee for cause. The Plaintiff in Klonteig was the Assistant Fire Chief with the City of West Kelowna (the “Employer”), and had been working as a firefighter in B.C. for 18 years. In 2013, the Plaintiff was driving home from a night out with his spouse in a vehicle owned by the Employer. The Plaintiff’s vehicle was stopped by a police officer, and he failed two roadside breathalyzer tests. The police officer issued a 90 day administrative driving prohibition. The Plaintiff previously had an unblemished employment record and was described as being very forthright and honest with the Employer about what had happened. The Employer thereafter terminated him for cause as a result of this off-duty conduct. Following his termination, the Plaintiff was unable to secure a municipal firefighting position.  The Plaintiff commenced a wrongful dismissal action and sought 18 months’ pay in lieu of notice. He also sought increased damages for the manner in which he was terminated. The Court concluded that the Employer did not have just cause to dismiss the Plaintiff, and awarded him 5 months’ pay in lieu of notice pursuant to his employment contract. The Court explained that there is no single test to define the degree of misconduct that will justify termination for cause. The Court held that off-duty conduct may amount to cause only when the conduct is likely to be or actually is prejudicial to the interest or reputation of the employer. The conduct must be considered in the context of the circumstances surrounding the misconduct and the nature of the employment relationship. This assessment will therefore vary from case to case, and a balance must be struck between the severity of the misconduct and the sanction imposed. The Court considered the following factors as being persuasive in determining that the Employer did not have cause to terminate the Plaintiff:

• The Plaintiff was not representing the Employer when he was engaged in the misconduct, as the vehicle was unmarked and there was no public knowledge of his administrative suspension.
• The misconduct was not of the same reprehensibility as had occurred in other cases involving tax fraud or sexual misconduct.
• There was no evidence that the members of the fire department had lost confidence in the Plaintiff as a result of the incident.
• The police officer exercised his discretion to administer an administrative licence suspension instead of imposing a criminal charge.
• It was difficult to conclude that members of the public would lose confidence in him, or would have been offended by his misconduct being sanctioned by a length suspension without pay.

As this assessment is inherently fact-specific, employers and employees alike are encouraged to consult with a lawyer if they find themselves facing similar circumstances.

About the Author: Katherine is an associate practicing in the Regina office.  She has particular interests in insurance law and labour and employment law.

About McKercher LLP: McKercher LLP is one of Saskatchewan’s oldest and largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made our firm rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2017). Integrity, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions. This post is for information purposes only and should not be taken as a legal opinion on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.