Firefighter’s off-duty driving suspension doesn’t warrant firing

Strong job performance and respect of firefighters meant off-duty incident didn’t irreparably harm employment relationship: Court
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 04/23/2018

Failing two breathalyzer tests while driving off-duty and a 90-day driving suspension did not provide just cause to dismiss a well-respected and accomplished British Columbia firefighter, the B.C. Supreme Court has ruled.

Kerry Klonteig was a firefighter for the city of Kelowna, B.C. He first trained as a firefighter in 1990 and worked as an on-call firefighter — working another job while responding to a call if there’s a fire — in Nanaimo, B.C, before transferring to Kelowna in 1992. Three years later, he became a full-time firefighter for Kelowna.

Klonteig performed well in his work as a full-time firefighter and was promoted to the position of assistant fire chief in 2005 — one of four assistant chiefs reporting to the city’s fire chief. He was responsible for operations, co-ordination of resources for major incidents, and human resource issues — he spent the majority of his time on labour relations with the union and relations with the firefighters.

In 2008, Klonteig applied for and was awarded the position of assistant fire chief for the newly-incorporated West Kelowna District. Though technically a lateral move, the new position provided better opportunities for advancement and there were only two assistant chiefs in the district. His contract with the district contained a termination clause that stated after 12 months of employment he would be entitled to “a maximum of one month notice or salary in lieu of notice, at the employer’s option, for each completed year of service, to a maximum of 24 months, and with a minimum of three months notice or salary in lieu of notice, for without-cause termination. If he found other employment during the notice period, the amount would be decreased by 50 per cent.

During his time as a Kelowna firefighter, Klonteig’s annual performance reviews were good and he often received ratings of “meeting and often exceeding the job requirements.” The fire chief acknowledged Klonteig’s status as an “exemplary employee” and he was respected by all the firefighters.

Pulled over while off duty

In the early morning of Oct. 7, 2013, Klonteig was off-duty and on his way home after a night out with his spouse when he was pulled over by a police officer who suspected him of impaired driving. He was driving the fire chief’s pickup truck, which he had been allowed to use since the truck he normally used was in use — there were no policies against the personal use of fire department vehicles. The truck had no decals or other indications it belonged to the district or its fire service, other than a fleet number on the tailgate. Klonteig failed two roadside breathalyzer tests, so the vehicle was impounded and he received a 90-day administrative driving prohibition.

Later that same day, Klonteig reported the incident to the fire chief and they went to the district office to discuss it with human resources. He was “distraught and remorseful” and said he had believed he hadn’t been impaired but was apparently mistaken. Due to a misunderstanding, the chief and the HR advisor initially thought Klonteig’s driving suspension was only for 24 hours. They considered giving Klonteig a letter of reprimand, but once the true length of the driving prohibition became clear, they escalated the matter to West Kelowna’s chief administrative officer and sent Klonteig home to begin what they expected would be a suspension.

The chief administrative officer felt Klonteig had exposed the district and its taxpayers to potential liability and had endangered public safety, so he felt Klonteig’s employment should be terminated. The fire chief and HR advisor thought termination was too much and pushed for lesser discipline, pointing out that Klonteig hadn’t been charged, had an excellent service record, and losing him would have an significant operational impact on the fire department. The HR advisor also believed that Klonteig would have the support of the majority of their firefighters since he was so well-respected — 24 of the 28 members of the firefighters union had already signed a letter of support for Klonteig. The chief administrative officer wouldn’t change his mind and Klonteig was given a termination letter on Oct. 9, 2013.

The termination letter stated that Klonteig should have been aware he should not have been driving the fire chief’s truck for personal reasons and should not have been consuming alcohol while driving a district vehicle. It concluded that due to the incident, “it will be impossible for you to regain the necessary respect of the members of the department” and his actions were incompatible with his duty to ensure public safety.

Denied a reference letter

The fire chief and HR advisor told Klonteig that they would give him a written reference letter, but the district’s legal counsel advised them that they shouldn’t provide formal letters of reference under the circumstances and should only provide verbal reference to prospective employers.

Klonteig was successful in applying for employment insurance benefits as the employment insurance commission determined his reason for loss of employment was not misconduct. He applied for several other firefighting jobs, bus was unsuccessful. He eventually found other work.

Klonteig filed a claim for wrongful dismissal, demanding 18 months’ pay in lieu of notice plus additional damages for the manner in which he was terminated and the district’s failure to provide him with a reference letter.

The court noted that for off-duty conduct to provide just cause for dismissal, it “must be or be likely to be prejudicial to the interests or reputation of the employer.” In Klonteig’s case, he wasn’t representing the district or the fire department when he was pulled over and the pickup truck he was driving wasn’t marked as belonging to the district, even though it was property of the fire department. In addition, there was no public knowledge of the 90-day driving prohibition and the police officer only gave him an administrative suspension without charges, said the court.

The court agreed that it was fair for the district to expect a senior employee in a department tasked with protecting public safety to avoid the risk of public harm, but Klonteig wasn’t a public face of the fire department and his conduct didn’t cause the full-time firefighters — who were first responders to accident scenes involving impaired drivers — to lose confidence in him, as evidenced by the letter of support. Given the confidence of the firefighters themselves, it was unlikely that public confidence would be lost as well, the court added.

The court determined that Klonteig’s off-duty conduct didn’t preclude him from effectively performing his job duties, nor did it negatively affect the interests or reputation of the West Kelowna district or its fire department. As a result, there was no cause for dismissal.

However, the court found that the failure to provide reference letters wasn’t proven to be the reason Klonteig couldn’t find employment in the firefighting field, nor was it clear he didn’t accept the offer of verbal references from the chief and HR advisor. Nor did the district do anything to attack his reputation or misrepresent the reason for his termination — the termination letter made it clear why Klonteig was being dismissed and the decision was made quickly. As a result, there was no bad faith in the manner of Klonteig’s dismissal and no reason for his notice entitlement to be more than that provided for in the termination clause of his employment contract — a maximum of one month per year of employment.

The district was ordered to pay Klonteig five months’ salary, equal to $42,325, as required for termination without cause under his contract.

For more information see:

• Klonteig v. West Kelowna (District), 2018 CarswellBC 126 (B.C. S.C.).

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