Ev­i­dence key in fir­ing for drunk­e­ness

National Post (Latest Edition) - - FINANCIAL POST - Work­place Law Howard Le­vitt Howard Le­vitt is se­nior part­ner of Le­vitt & Gros­man LLP, em­ploy­ment and labour lawyers. He prac­tises em­ploy­ment law in eight provinces. Em­ploy­ment Law Hour with Howard Le­vitt airs Sun­days at 1 p. m. on NEW­STALK 1010 in Toront

While a lunchtime glass of wine may un­der­stand­ably per­turb some em­ploy­ers, the law does not re­quire tee­to­tallers.

By all ac­counts, Larry Vol­choff was a trusted and ef­fec­tive man­ager of the Wright Auto Sales deal­er­ship in Cam­bridge, Ont., be­tween 2012 and 2014. He worked long hours con­duct­ing his own sales, while lead­ing a staff of 10.

One of his re­spon­si­bil­i­ties was to drive to a weekly man­agers’ meet­ing at the of­fice in Water­loo, Ont. Be­fore the meet­ing, he would have a glass of wine with lunch at a restau­rant. This rou­tine went on with­out com­ment un­til a re­cep­tion­ist in­formed a man­ager that Vol­choff might want to use a breath mint be­cause she smelled al­co­hol on his breath. The odour was not strong nor ac­com­pa­nied by any slur­ring of words.

A meet­ing with se­nior man­age­ment en­sued. Vol­choff read­ily ad­mit­ted to his prac­tice. He was told that, while man­age­ment could not con­trol what he did at lunch, he was ex­pected to be re­spon­si­ble with al­co­hol at work. Vol­choff agreed and con­tin­ued with his prac­tice.

Sev­eral weeks later, he was again sum­moned to a meet­ing and ad­vised that a cus­tomer had com­plained he had ap­peared to be drunk at the Cam­bridge deal­er­ship on a Sun­day. Vol­choff ve­he­mently de­nied t his, main­tain­ing that he had no al­co­hol that day. He was then in­formed of a zero-tol­er­ance pol­icy for drink­ing al­co­hol at work. But he did not un­der­stand that he could not have a drink at lunch nor was he told what the sanc­tions were for fu­ture vi­o­la­tions.

A few months later, Vol­choff was called to a meet­ing and abruptly no­ti­fied of his sus­pen­sion. An­other ac­cu­sa­tion had been lev­elled by staff at the Cam­bridge of­fice that Vol­choff had been driv­ing a com­pany ve­hi­cle while im­paired and was at work un­der the in­flu­ence of al­co­hol. The names of the em­ploy­ees were not re­vealed to him but he was promised a full op­por­tu­nity to re­spond to the al­le­ga­tions at a ses­sion a week later.

That op­por­tu­nity never ma­te­ri­al­ized. At the next, and fi­nal, meet­ing, Vol­choff was told the em­ploy­ees had con­firmed th­ese al­le­ga­tions and he was given a ter­mi­nat i on l et­ter. Vol­choff re­sponded with a law­suit.

Re­ject­ing Wright Auto Sales’ de­fence it had a ze­ro­tol­er­ance pol­icy re­gard­ing al­co­hol con­sump­tion dur­ing work­ing hours, Jus­tice Robert Nightin­gale of the On­tario Su­pe­rior Court found for Vol­choff.

Nightin­gale found in­suf­fi­cient ev­i­dence that such a pol­icy ac­tu­ally ex­isted dur­ing Vol­choff ’s em­ploy, much less that it was ef­fec­tively com­mu­ni­cated to him. The cus­tomer who al­legedly com­plained about Vol­choff be­ing drunk in the work­place was never pro­duced as a wit­ness, and none of the staff could point to any spe­cific dates that Vol­choff ei­ther had con­sumed al­co­hol to ex­cess or was in­ca­pac­i­tated. As a di­rect con­se­quence, hefty wrong­ful dis­missal dam­ages were awarded.

This case is a text­book ex­am­ple of the pit­falls em­ploy­ers must avoid in build­ing a case: ❚ Clearly com­mu­ni­cate poli­cies: The court de­ter­mined t hat Vol­choff was never made aware of a pol­icy pro­hibit­ing drink­ing al­co­hol dur­ing work­ing hours. A signed writ­ten di­rec­tive would have dis­pelled any mis­un­der­stand­ing. ❚ Keep notes of dis­cus­sions: The dearth of writ­ten records of the al­leged com­plaints and meet­ings with the em­ploy­ees prompted the court to favour Vol­choff ’s ev­i­dence over the em­ployer’s wit­nesses. ❚ Ob­tain signed state­ments: With­out such de­tailed con­fir­ma­tions, wit­ness rec­ol­lec­tions fade over time and it is dif­fi­cult to re­con­struct events for trial, much less to with­stand cross ex­am­i­na­tions. ❚ Con­front the em­ployee with al­le­ga­tions: The courts are in­creas­ingly im­pos­ing an obli­ga­tion of fair­ness on em­ploy­ers to pro­vide the ac­cused an op­por­tu­nity to tell his or her side of the story. The prac­ti­cal ad­van­tage is that em­ploy­ers get the chance to learn of po­ten­tial de­fences it will have to deal with at trial and makes it vir­tu­ally im­pos­si­ble for an em­ployee to con­coct a bet­ter ver­sion af­ter meet­ing with coun­sel. ❚ Avoid a f ait ac­com­pli: Wright Auto Sales sim­ply handed Vol­choff let­ters of sus­pen­sion and ter­mi­na­tion with­out con­duct­ing an in­ves­ti­ga­tion or en­sur­ing it had am­ple ev­i­dence to sup­port cause. It was for­tu­nate it dodged the bul­let of an award of puni­tive dam­ages.

A SIGNED WRIT­TEN DI­REC­TIVE WOULD HAVE (BEEN USE­FUL).

DAVID SIL­VER­MAN / GETTY IM­AGES

Ad­e­quate proof could not be fur­nished of al­le­ga­tions that Larry Vol­choff was drunk on

the job at an auto deal­er­ship, so hefty wrong­ful dis­missal dam­ages were awarded.

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