A Glass Of Wine At Lunch May Not Be Cause For Termination
January 25, 2016
The Ontario Superior Court recently held that a car dealership, Wright Auto Sales Inc. (the “Employer”), wrongfully dismissed one of its managers with two years of service (the “Employee”), when it terminated the Employee’s employment for consuming alcohol during the work day and allegedly being under the influence of alcohol while at work.
A few months prior to the Employee’s termination he was told by his superiors during a weekly manager’s meeting that they could smell alcohol on his breath. At that time, the Employee admitted his practice was to have an occasional glass of wine at a local restaurant during lunch prior to attending the weekly meeting. About a month later, the Employer notified the Employee of an alleged customer complaint suggesting the Employee was intoxicated at work. Further allegations regarding the Employee’s alleged consumption of alcohol were made a few months later, including an allegation that the Employee had been driving a company vehicle while impaired. Relying on its alleged zero-tolerance policy for the consumption of alcohol and the alleged negative impact the Employee’s behaviour had on the Employer’s legitimate business interests, the Employer terminated the Employee. In response, the Employee commenced an action alleging wrongful dismissal.
At trial, the Court found that there was little evidence to substantiate the Employer’s allegations that the Employee was actually under the influence of alcohol while at work, had consumed alcohol at work or that his consumption of alcohol on lunch from time to time negatively affected the Employer’s business interests. The Court also found that the Employer’s alleged zero-tolerance policy for the consumption of alcohol was ineffectively communicated to the Employee. Instead, the Court accepted the Employee’s evidence that he had never been told that he was not permitted to have a glass of wine when out at lunch. The Court also rejected the Employer’s argument that the zero-tolerance policy was an implied term of the employment contract. In the result, having found no evidentiary basis to substantiate the Employer’s allegations of alcohol related wrongdoing on the part of the Employee, the Court awarded the Employee $48,557.68 in damages which amounted to five months’ pay in lieu of notice.
This decision is another reminder that employers must meet a high threshold in order to demonstrate just cause for termination. If an employer has a zero-tolerance policy for alcohol consumption, that policy should be committed to writing using clear language that explains the policy’s application and the consequences for violating it and be brought to the attention of all employees at the time of hire.
Volchoff v. Wright Auto Sales Inc., 2015 CanLII ONSC 8029
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