One of our employees, who is required to drive a company vehicle to perform his duties, was charged at the end of his shift with impaired driving. Clearly he is now unable to fulfill his duties
Question: One of our employees, who is required to drive a company vehicle to perform his duties, was charged at the end of his shift with impaired driving. Clearly he is now unable to fulfill his duties. In the event we decide to discharge this individual, what should we say regarding the reason for discharge? My instincts tell me that discharging him for the impaired charge would open us up for problems and that we should state something along the line that he is discharged for being unable to fulfill his job. This is a non-union environment.
Answer: When an employee is terminated, an employer can terminate for one of two reasons: termination for cause or termination without cause. In the event an employee is terminated for cause, the employer must prove it has just cause to terminate the employee. Some employers may think an employee being intoxicated at work is cause for the dismissal of their employment. But being intoxicated at work is not always enough to justify termination for cause.
If there are serious consequences where the intoxication jeopardizes the employee’s duties, it may amount to cause for dismissal. Therefore, if the conduct is injurious to the employer’s interests or incompatible with the employee being able to carry out his duties to the employer, it may be cause for the termination of employment.
From the facts, it is not clear as to whether this employee drank while working or whether he drank after work. If this employee is an alcoholic, there could be issues around this handicap pursuant to the Human Rights Code. It is only clear that at the end of the shift he was charged with impaired driving, not convicted. Due to this fact he is innocent until proven guilty and, therefore, should still be able to drive until his trial. At trial he may be acquitted or convicted. In the event he is convicted, he will lose his license which could lead to a potential frustration of the employment contract.
However, if the intoxicated employee has conducted himself in a manner which interferes with the proper performance of his duties, it is important that an employer consider the following questions:
•Was the employee’s action was injurious to the interest of the employer?
•Was the employee acting in a manner which was incompatible with his duties and responsibilities?
•Did the employee do anything prejudicial to the employer’s interests or reputation?
If the employee’s duties are jeopardized as result of the intoxication, and the employer’s interests have been prejudiced, the employer may have cause for termination. It is important to advise the employee of this if the employee is to be terminated for cause. However, it must be stressed that cause should not be alleged lightly. When the court assesses whether or not the employer has cause to terminate employment, it will assess this having regard to both the context and proportionality of the cause termination.
In essence, the court will determine whether the punishment fits the crime. The court will examine the employee’s length of service and his past history with the company as important factors in the determination. In the event the court does not agree the employer has cause for termination, it may award further damages for having brought the cause allegation.
Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected].
Answer: When an employee is terminated, an employer can terminate for one of two reasons: termination for cause or termination without cause. In the event an employee is terminated for cause, the employer must prove it has just cause to terminate the employee. Some employers may think an employee being intoxicated at work is cause for the dismissal of their employment. But being intoxicated at work is not always enough to justify termination for cause.
If there are serious consequences where the intoxication jeopardizes the employee’s duties, it may amount to cause for dismissal. Therefore, if the conduct is injurious to the employer’s interests or incompatible with the employee being able to carry out his duties to the employer, it may be cause for the termination of employment.
From the facts, it is not clear as to whether this employee drank while working or whether he drank after work. If this employee is an alcoholic, there could be issues around this handicap pursuant to the Human Rights Code. It is only clear that at the end of the shift he was charged with impaired driving, not convicted. Due to this fact he is innocent until proven guilty and, therefore, should still be able to drive until his trial. At trial he may be acquitted or convicted. In the event he is convicted, he will lose his license which could lead to a potential frustration of the employment contract.
However, if the intoxicated employee has conducted himself in a manner which interferes with the proper performance of his duties, it is important that an employer consider the following questions:
•Was the employee’s action was injurious to the interest of the employer?
•Was the employee acting in a manner which was incompatible with his duties and responsibilities?
•Did the employee do anything prejudicial to the employer’s interests or reputation?
If the employee’s duties are jeopardized as result of the intoxication, and the employer’s interests have been prejudiced, the employer may have cause for termination. It is important to advise the employee of this if the employee is to be terminated for cause. However, it must be stressed that cause should not be alleged lightly. When the court assesses whether or not the employer has cause to terminate employment, it will assess this having regard to both the context and proportionality of the cause termination.
In essence, the court will determine whether the punishment fits the crime. The court will examine the employee’s length of service and his past history with the company as important factors in the determination. In the event the court does not agree the employer has cause for termination, it may award further damages for having brought the cause allegation.
Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected].
