Saskatchewan man wins more than $55,000 after being fired for drinking while on suspension for impaired driving
A Saskatchewan worker charged with drunk driving won a $55,000 wrongful dismissal suit against his employer after it suspended him without pay and subsequently terminated his employment.
The case is notable because, at first glance, it looks as if the employer handled the termination properly. But the court found a number of critical holes in the employer’s approach.
Leslie Dreger was a retail sales co-ordinator for Federated Co-operatives Ltd. He started working for Federated in 1988, though he had been in the co-op business since 1981. As a retail sales co-ordinator, he assisted 35 stores in southern Saskatchewan and was required to do a fair bit of driving.
Dreger separated from his wife in 2002, and she subsequently moved with their children to Lloydminster, Sask. He was very unhappy about the breakup and the distance between him and his children. On Aug. 30, 2002, Dreger was returning from Lloydminster to Saskatoon with two of his daughters in the car. He consumed six beers while driving and was involved in a minor accident. He left the scene, but was soon stopped by police. He was charged with a number of offences, including impaired driving. His licence was suspended.
A few days later, before the case was tried, he went into work and told his supervisor, a human resource manager and a region manager about his licence suspension. The company decided to suspend him without pay on conditions, which were communicated to Dreger in a memo dated Sept. 5, 2002. The suspension was to be effective Sept. 7 and would last until:
•he presented proof there were no impediments to being able to perform the normal tasks of the position, including the legal operation of a motor vehicle; and
•he presented proof he had undertaken counseling sessions related to the treatment of alcoholism.
It further stated that upon meeting those two conditions, he would be reinstated to his position on a probationary period of one year, during which time he was expected to:
•refrain from the consumption of any alcohol;
•receive and comply with all ongoing treatments assigned or prescribed by a professional alcoholism counselor; and
•become an active member of an Alcoholics Anonymous (AA) group.
The memo ended by stating that failure to comply with the above will result in further disciplinary measures, up to and including termination of employment.
Dreger pleaded guilty to the impaired driving charge, and his licence was suspended for one year. Dreger started attending AA meetings in September and attended a 28-day residential course at Pine Lodge at Indian Head. He successfully completed the alcohol treatment program on Nov. 13, 2002.
But shortly after, he suffered a relapse. A staff member of another co-op saw Dreger with a beer in his hands while playing a video lottery terminal machine at a pub. And in December, after his wife refused to let him speak with his daughter on her birthday, he headed out to a bar and consumed a number of drinks.
Federated found out about the first instance, and called Dreger in to discuss his progress. He first denied drinking at all, but then admitted he had “a couple of beers” that night. At that time, he admitted to the second incident following the incident over his daughter’s birthday. He also had not attended his first scheduled review at Pine Lodge, and claimed to have been in contact with an alcohol counselor when, in fact, he had not.
The dismissal letter
Federated decided to dismiss Dreger from his employment because of his actions while on suspension, coupled with his dishonesty with respect to those matters. The employer viewed it as culminating in a breach of the trust relationship between Dreger and Federated. The dismissal letter dated Jan. 10, 2003, reads:
“On Sept. 5, 2002, communication to you clearly outlined the terms you were to comply with during your suspension of employment with our company. It was brought to our attention and subsequently reviewed with, and confirmed by you, that you had violated the terms as outlined. As discussed during our meeting of Dec. 30, 2002, your violation of the terms outlined in your letter of suspension would be reviewed and could have serious consequences for you.
“We have reviewed all the facts and it is with regret that I must inform you of our recent decision to terminate your employment with Federated Co-operatives Limited, effective Jan. 10, 2003.
“Your failure to comply with the terms of your suspension has left us with no alternative but to terminate your employment. We wish you good luck in seeking future employment.”
The court ruled Dreger had completed the second condition for returning from his suspension when he completed the 28-day rehab program, and that Federated had terminated him before he had a chance to complete the first condition — being able to drive legally.
It was not an express condition set out in his letter of suspension that he refrain from consumption of alcohol during the period of suspension, the court said. Nor was there sufficient evidence from which one could imply that it was a condition before Dreger was eligible to return to work.
Only when he complied with the first two conditions and returned to work and was on probation for one year was the consumption of alcohol prohibited, as stated in the notice of suspension on Sept. 5.
The court ruled Federated “jumped too quickly” and applied the conditions imposed with respect to an anticipated probationary period when Dreger returned to work.
That’s where Federated made its mistake, the court said, because it did not specifically set out non-consumption of alcohol during the period of suspension as a clear condition and breach of which may entitle it to terminate his employment.
Because Dreger was 38, with 21 years of experience, the court awarded 12-months’ notice, or $55,000, for wrongful dismissal plus the employer-paid portion of his pension plan for a total of $57,761.
The court deducted $9,176 Dreger had earned at two other jobs since the time he was fired for a total award of $48,585 in ruling he had taken sufficient steps to mitigate his damages.
