A recent decision from the Ontario Superior Court is a reminder to employers that dismissal for just cause must be based on solid ground. Relying on vague acts of misconduct will not suffice, and policies must be properly implemented and consistently enforced.
In Volchoff v. Wright Auto Sales Inc., the plaintiff, Mr. Volchoff, was terminated for cause. The defendant employer, Wright, alleged that the Mr. Volchoff had been under the influence of alcohol while at work on a number of occasions and drove a company vehicle while impaired.
Wright operated a used car sales business and Mr. Volchoff was the manager of its Cambridge, Ontario operation. The allegations of misconduct included: showing up to a managers’ meeting smelling of alcohol, a customer complaint that Mr. Volchoff was intoxicated while at work, and general complaints from co-workers that he had been driving a company vehicle while impaired.
Setting aside any human rights considerations (which was not an issue at trial), these are serious allegations which, if true, may very well have proved sufficient cause for summary dismissal. However, the employer’s case unravelled at trial.
Mr. Volchoff admitted that he had one glass of wine prior to the managers’ meeting while having lunch at a nearby restaurant. Although at trial Wright asserted it had a zero-tolerance for alcohol policy, there was no written policy at the time. Further, when confronted about the incident, Mr. Volchoff was not reminded of the alleged policy and warned that he could not drink during working hours. Instead, he was simply told that he needed to be responsible with alcohol at work.
With respect to the customer complaint and internal complaint, the details were vague. Although Wright conducted an investigation into the internal complaint, it never provided Mr. Volchoff with the specifics of the allegations or an opportunity to respond. Nor were there any specific allegations, only vague comments that he was sometimes red in the face or smelled like alcohol. At trial, witnesses testified that Mr. Volchoff had smelled of alcohol on occasion; however, none saw him exhibit symptoms that would impair his ability to do his job or drive a car, for instance, slurred speech, unsteadiness on his feet, or change in his personality.
The court found that Wright had based its decision on vague allegations of consumption of alcohol during working hours, which fell short of the high standard required to prove just cause.
There are a number of takeaways from this case. First, employment policies of this magnitude of importance should be committed to writing, and all policies must be clearly communicated to employees and consistently enforced. Second, workplace investigations must be handled with care. When conducting an investigation the employer should ensure that it has collected sufficient detail and evidence regarding the allegations. Equally important, but often missed, the employee must be provided sufficient information about the allegations and a bona fide opportunity to respond.
In the heat of an investigation, employers must resist the temptation to jump to conclusions and investigators must remain objective despite often strong internal pressure to reach a particular result. The purpose of the investigation is to find the truth, not to find evidence to support assumptions and premature conclusions. An unsupported conclusion reached through a flawed investigation may expose an innocent employee to severe undeserved consequences and, ultimately, may expose the employer to significant damages when its defence unravels at trial.
This blog post was first published on First Reference Talks.