Evidence key in firing for drunkeness
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).