Dealing with Off-Duty Driving Offences

While it’s easy to say that what an employee does on his or her time off is none of the employer’s business, this is not always true.  When an employee’s off-duty conduct has an impact on the employer’s operations or reputation, or interferes significantly with the employee’s ability to perform the job, the employer has a legitimate interest in addressing that behaviour.  As discussed in an earlier post on the Ghomeshi fiasco, employees can incur employment-related repercussions for actions they take in their personal capacity.

But what about driving infractions?  Can offences behind the wheel have employment ramifications?  What about an employee who suffers from alcoholism?  Can they rely on their disability to excuse charges under the Highway Traffic Act or the Criminal Code?  As seems to generally be the case in matters like this, the answer to these questions is “it depends”.

As the Court said in Pearce v. Foster et al. (a “master-servant” case from the late 19^th Century):

If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.

Of course, the determination of whether particular actions amount to cause for dismissal is a much less black-and-white affair than it was 130 years ago.  However, the principle is still observed:  an employee’s behaviour outside of work may have repercussions for the employment relationship (up to and including dismissal) where the behaviour is prejudicial to the employer’s interests.

Typically, whether or not off-duty driving offences or license suspensions (or other off-duty conduct) can be treated as ‘misconduct’ will turn on the nature and scope of the employee’s duties, the amount of notoriety their actions have attracted, the seriousness of the charges, the duration of the license restrictions or suspension, and the availability of other work or roles that don’t require driving. 

Before considering how to respond, an employer must make the necessary enquiries to determine what has occurred and how significant an event it is.  Obviously, the employee should be interviewed and any other available information gathered.  In some cases, this process may be hampered if the employee has received legal advice from a criminal lawyer and decides to exercise his or her ‘right to remain silent’.  At very least, however, the employer should require the employee to provide a copy of the information or ticket that was issued, and/or any documentation that may have been provided by the Ministry of Transportation (for example, where the licensing issue results from administrative reasons or an accumulation of lesser driving offences) to establish what charges and/or driving conditions apply.

Perhaps most crucial to the employer’s decision-making will be the nature of the employee’s role and responsibilities.  Is possession of a valid driver’s license a requirement of the position?  Is driving the primary or an essential duty of the employee’s job?  If not, how often is the employee expected to drive in the course of performing the job?  Does the employee operate an employer vehicle or his/her own car?  Does the employer maintain fleet insurance and what are its terms?  The more central that driving is to the employee’s duties, the more stringent the employer can be in its scrutiny of the circumstances of the loss of license.  However, it is also essential for the employer to understand the duration of the license suspension or conditions.  The shorter the suspension, the more carefully the employer should consider other options short of termination, such as an administrative suspension or reassignment to other duties (if they are available), to keep the individual employed until they regain the ability to drive.

The seriousness of the infraction and the employee’s explanation and display of remorse (if any) are also important factors to consider.  If the employee’s license was suspended administratively or for reasons unrelated to behaviour behind the wheel (for example, due to a failure to renew on time, failure to provide required medical information, or due to arrears in spousal or child support), the employer should consider options short of significant discipline or discharge.  On the other hand, conduct that suggests poor judgment or risk-taking (e.g., drunk driving, over 80 mg, or so-called ‘stunt-driving’), may attract more significant sanctions (and , therefore, less empathy).  Likewise, the attitude of the employee and any explanation they may provide must be weighed.  An absence of contrition or insight into the seriousness of the situation are poor indicators of likely good behaviour when driving for work in the future.  Of course, the employer must also consider the employee’s general history in terms of performance and behaviour – an employee with long, good service will obviously expect to receive more leniency than a short-term employee or one with a chequered past.

In some cases, the nature of the employer’s business and/or the notoriety of the employee’s behaviour may also be an aggravating factor.  Where charges against the individual have been reported in the media, the employer’s reputation may be at stake, particularly in a smaller community.  In some cases, the extreme safety sensitivity of the work may dictate that the employee be pulled off the road immediately (e.g., a truck driver who works for a company that hauls fuel oil or other dangerous goods on public roadways).  If there’s a risk that the employee’s behaviour may impact public confidence in the services provided by the employer (such as would be the case in policing), this will also be relevant to how seriously the misconduct is treated.

In any event, it cannot be assumed that the loss or suspension of an employee’s driver’s license will necessarily result in termination, even where driving is a significant component of their job.  As Arbitrator Owen Shime observed in one of the seminal arbitration cases on the subject (Re Bell Canada and C.W.C. (Shime), 24 L.A.C. (4th) 116):

An employee who loses his or her driving licence for violation of the Highway Traffic Act, [citation omitted], or a similar statute need not suffer a loss of employment, even where the employee is required to have a driving licence in order to perform his or her duties.  An employer is required to act reasonably and must balance its interests in maintaining production with the grievor’s interest in retaining his or her employment.  Also some care should be taken to ensure that the employee is not penalized twice for off-duty conduct but rather that there is a legitimate and significant employer interest that is being protected.  And finally, in the loss of licence cases there is a presumption that an employee should be suspended until other work is available or the employee’s driving privileges are restored.

Alternatively, a number of adjudicators have also held that an employer should consider the possibility of offering other, non-driving duties to an employee pending reinstatement of their driver’s license.  However, this option should only be considered in cases where the period of suspension or driving conditions is known and relatively short.  And of course, this alternative should never be considered where it would result in displacing another employee.  Only available work should be offered to accommodate the employee who has lost his/her driving privileges.

But what about the employee whose license is suspended due to charges related to impairment by alcohol or drugs, but who suffers from a known addiction?  What weight should the employer give the employee’s disability?  Is it an excuse or a mitigating factor?

In English v. Treasury Board (Solicitor GeneralCanada - Correctional Service), 2003 PSSRB 72, Board Member Guindon was dealing with the case of a correctional officer who was terminated for failing to disclose off-duty conduct (i.e., criminal charges related to drunk driving) that compromised his ability to perform his duties.  The officer had not told the employer that he had been convicted or that his license had been suspended for two (2) years.  In addition, he continued to operate employer vehicles (performing inmate transfers) after he lost his license.  Prior to the arbitration hearing, the employee expressed remorse and took steps to address his acknowledged problems with alcohol abuse.  The Board Member observed that the employee’s alcoholism had to be considered in assessing the appropriate penalty for his wrongful behaviour.  Citing an earlier decision, the Board Member wrote:

What emerges from these cases and the other material cited to the board is a recurring set of considerations and principles arbitrators take into account when dealing with discipline as it is applied to the alcohol and/or drug-addicted employee. These principles and considerations include the following:

1.            Alcoholism is recognized as an illness albeit one with an element of volition, that can attract varying levels of justifiable disciplinary response from the employer up to and including discharge;

2.            An adjudication board is entitled to look at the rehabilitative progress made by an employee subsequent to the employer's decision to discipline and is likely to modify that discipline if the employee can demonstrate that he has been successful in his recovery;

3.            The discipline imposed by an employer should only be modified in "exceptional circumstances" and those circumstances exist where an employee has shown genuine prospects for recovery and the restoration of a productive employer-employee relationship;

4.            The employer is entitled to insist that the employee perform the work for which he is paid and is not obliged to bear all the costs and consequences associated with an employee's inability to perform his duties as a result of his alcoholism;

5.            An adjudication board should consider the extent to which and the duration for which an employee is unable to perform his employment obligations;

6.            That where reinstatement occurs in substitution for discharge arbitrators are prepared to attach conditions to such reinstatement. Recognizing that alcoholism and drug addiction are not curable and can only be arrested by total abstinence, one such condition often attached to reinstatement is the requirement that the employee remain drug and alcohol-free.

In short, where it is established that an employee’s misconduct (in this case, off-duty driving offences) are related to a proven medical condition (i.e., alcoholism), the focus of the analysis will be on whether the employee acknowledges and seeks treatment for his/her problem, as well as the likelihood for recovery.  Evidence that the employee has sought treatment even after termination may be relevant.  However, the employer can in these cases impose conditions on the employee to ensure that the employee completes any rehabilitation program and complies with prescribed after-care (including abstinence from alcohol).

Where dismissal is not the appropriate course of action, an employer can consider withholding assignments that involve driving, transferring the employee to another position or other duties that don’t require a license, suspending the employee (where no other suitable work is available) or demoting the employee to a role where driving is not required.

While driving offences can have a significant impact in the workplace – hindering efficient operations or drawing unwanted scrutiny on an organization – employers need to be aware that not every loss of a driver’s license should attract the same penalty.  A careful, fact-specific assessment is required in each and every case.

Do you have questions how to deal with an employee who has lost their driving privileges?  Need guidance on whether or not to discipline for off-duty conduct?  Contact Lance Ceaser for expert advice.

Drug & Alcohol Testing - The State of the Law

Over the last couple of years, the law on workplace drug and alcohol testing has become significantly clearer - to the point where it's arguable that there is little ambiguity left.  It is widely accepted that alcohol and drug dependency are 'disabilities' protected by human rights legislation, and that drug testing tends to impose differential treatment on those who suffer from these conditions or presupposes that those who test positive are "addicts" and more likely to be impaired in the workplace.  In the absence of evidence to establish that testing (to ensure freedom of impairment) is a bona fide occupational requirement (i.e., rationally connected to preventing impairment, adopted in good faith, reasonably necessary to achieve that end, and that no other reasonable accommodation of disabled employees is possible, without incurring undue hardship), alcohol and drug testing will be found to be discriminatory.

So what are employers allowed to do in the name of workplace health and safety?  What is out of bounds?  Here's an overview of how the law has evolved, and where employers and employees stand following the most recent pronouncements of the courts and arbitrators.

Entrop v. Imperial Oil

The debate about the competing interests of employers (maintaining a safe workplace) and employees (protecting privacy and dignity) really got started with the decision of the Ontario Court of Appeal in Entrop v. Imperial Oil ("Entrop").  In that case, the employee had disclosed a past substance abuse problem, in line with the employer's alcohol and drug policy, and was transferred out of a safety-sensitive position as a result.  In order to be reinstated to his former job, the employee was required to complete a company-approved two-year rehabilitation program followed by five years of abstinence and to sign an undertaking to abide by specified post-reinstatement controls (such as unannounced testing).  The policy also provided for random testing for all employees in safety-sensitive roles, providing for termination for a failed test.  The employee complained to the Ontario Human Rights Commission, and his complaint was upheld by a Board of Inquiry.

On appeal from the judicial review decision, the Court of Appeal found that alcohol and drug dependency were forms of "disability" protected by the Human Rights Code.  The Court went on to find that testing was rationally connected to the legitimate goal of preventing potentially "catastrophic" incidents at an oil refinery, which is an inherently safety-sensitive workplace.  However, drug testing (at the time) did not establish "present impairment", and therefore could not establish that an employee's condition, following a positive test, posed an actual danger.  While alcohol testing could establish impairment, it could not be justified unless the sanction imposed by the employer was tailored to the individual's circumstances and was supportive of accommodating his or her disability.  The Court of Appeal agreed with the Board of Inquiry that the provisions on disclosure, reassignment and reinstatement also violated the Human Rights Code, in that the employer did not establish that these rules were reasonably necessary to ensure that employees were not impaired in the workplace. The mandatory disclosure of a past substance abuse problem, no matter how long ago, was unreasonable, particularly once an employee was no more at risk of relapse than a member of the general population. Requiring that an employee be reassigned out of a safety-sensitive position once they had disclosed a past substance abuse problem was also not reasonable because it failed to offer any accommodation to the employee who had disclosed a disability.  The obligations that the policy imposed post-reinstatement were overly broad and unnecessarily rigorous.  The Court, however, found that reasonable cause and post-incident testing were defensible, provided they were part of a broader assessment of impairment by alcohol and drugs in the workplace.

Since the Entrop decision, there has been a vast amount of litigation on the subject of whether an employer can legitimately test employees for impairment by alcohol or drugs.  Here's a summary of where the law currently stands in Ontario:

Random Testing

Following the decision of the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. ("Irving"), it is now accepted that a unionized employer cannot justify the random testing of employees in safety-sensitive positions, unless the employer can establish that there is an actual workplace problem with drug and alcohol impairment which threatens health and safety. On the facts, the employer could only point to eight (8) safety incidents over a 15-year period that were caused or attributable to drug or alcohol impairment, so the employer was unable to establish that the balance of interests favoured intruding upon employee's autonomy by imposing random, unannounced testing.

 

However, in the non-union setting, employers may have slightly more leeway.  In Irving, the SCC expressly distinguished the Entrop decision, as non-union employers are not subject to the same managerial fetters as they are under a collective agreement.  It remains to be seen whether the analysis in Irving will ultimately influence human rights decision-makers when addressing complaints from employees who do not have union representation.

Pre-Access Testing

In a recent decision, the Ontario Superior Court of Justice upheld the decision of Arbitrator George Surdykowski in Mechanical ContractorsAssn. Sarnia v. United Assn. of Journeymen and Apprentices of the Plumbing & Pipefitting Industry, in which the Arbitrator determined that pre-access testing was more akin to random testing, and therefore unreasonable unless it can be established that:   

... such testing will probably have a meaningful ameliorating effect on an actual substance abuse problem at that work site, and so long as such pre-access testing is part of a broader alcohol and drug policy which includes an individualized approach to dealing with employee alcohol and drug issues which is consistent with the Ontario Human Rights Code. 

In short, unless the employer can establish both an actual workplace problem with alcohol or drugs and the availability of accommodation for employees who test positive, pre-access testing will not be reasonable in unionized workplaces.  Whether pre-access testing is permissible in non-union settings (following Entrop) remains to be conclusively determined.

For Cause, Post-Incident and Testing Following Return from Treatment

Following Entrop, there has been little argument about an employer's right to perform drug and alcohol testing where there is reasonable cause to suspect impairment (e.g., where an employee is behaving in a manner that raises a suspicion of substance abuse), or following an incident or near-miss in the workplace.  In order to qualify, the employee must be in a safety-sensitive position, and there must be objective reasons to consider drug or alcohol impairment as a potential cause or contributor to the employee's behaviour or performance.  Likewise, when an employee in a safety-sensitive job has disclosed an addiction and has sought treatment, an employer has a right to require testing for a reasonable period of time following the employee's return to work to monitor compliance with the employee's rehabilitation program.  Of course, the response to a positive test in any of these circumstances must be tailored to the employee's personal circumstances and provide the potential for accommodation of a disability, but it is otherwise permissible.

The East-West Divide

Ontario employer may have heard of more lenient decisions emanating from the courts of Alberta (most notably the 2007 decision of the Alberta Court of Appeal in Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company, leave to appeal to the Supreme Court of Canada denied).  However, don't be confused.  As recognized by Arbitrator Surdykowski in the Mechanical Contractors' Association Sarnia decision (above), there is truly a divide in the approach as between Alberta and all points east.  In Ontario, the reasons of the Alberta courts have not found favour, and the approach continues to be much more restrictive.  Unless an employer can point to safety-sensitive positions (or a workplace that is inherently dangerous) and evidence of a workplace 'problem' related to alcohol or drug impairment (i.e., erratic behaviour, an accident or near miss, an employee returning from drug or alcohol rehabilitation, or a proven substance abuse problem in the workplace generally), testing under a policy will be a tough sell.  Most adjudicators in Ontario will find in these situations that an employee's interest in personal dignity, autonomy and privacy will trump the employer's concerns for workplace health and safety, no matter how sincerely held those beliefs may be.

Do you have questions about how to formulate or apply a drug and alcohol policy in your workplace?  Need advice on what to do in the event of a positive drug or alcohol test?  Contact Lance Ceaser for expert guidance.




 

Did you know...?

... Telling an employee who has given notice of resignation that you no longer require their services and they can leave immediately can convert that resignation into a termination without notice?  If the employee has provided 'reasonable notice' of resignation, but the employer decides to end the relationship before the expiry of that notice, it is the employer who has terminated the contract.  In these circumstances, the employee is entitled to payment in lieu of reasonable notice. 

This concept was illustrated in a recent decision out of the Supreme Court of Canada, Quebec (Commission des normes du travail) v. Asphalte Desjardins inc. The Supreme Court determined that it is a "fiction" for an employer to claim that it has 'renounced' (or 'waived') the employee's notice of resignation, when in fact it has taken unilateral action to bring the contract to an immediate end. While the Asphalte Desjardins case was decided under the Quebec Civil Code, similar rules are applied by the common law courts.  See for example, the decision in Compton v. Partners in Motion Pictures Inc., a 2005 decision of the Saskatchewan Court of Queen's Bench. 

Once an employee provides notice of resignation, the employer can accept it or seek to negotiate a longer or shorter period of notice, but cannot dictate the effective date of resignation.  If the employee is to be sent home prior to the effective date of resignation, the employer should make clear that their active service will not be required, but that the employee should make him or herself available during the notice period to facilitate the transition of duties, projects, etc.  Full salary and benefits must be maintained for the entirety of the notice period, as well.

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... That the new Ontario Budget Bill was accompanied by the Building Opportunity and Securing Our Future Act (Budget Measures, 2014) ("Bill 14") which, among other things, amends the Insurance Act to require employers who provide Long-Term Disability ("LTD") benefits to do so through "a contract of insurance undertaken by a licensed insurer"?  No longer can such benefits be self-insured. Health benefits providers have been pressing for this change for some time, as it provides greater security for those receiving benefits coverage.  This measure brings provincially-regulated employers in Ontario into line with federal employers, who have been subject to a similar requirement since 2012. Bill 14 received Royal Assent on July 24, 2014, but has yet to be proclaimed.  Stay tuned...

 

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... That an employer's duty to accommodate an employee suffering from drug addiction or alcoholism may not be triggered until the employee fully discloses the existence of the disability?  In a handful of recent decisions, adjudicators have been reluctant to overturn employer decisions to terminate the employment relationship where an employee engages in serious misconduct, even where the behaviour has its roots in addiction or alcoholism.

In Bish v. Elk Valley Coal Corporation, the employer had a drug and alcohol policy which offered amnesty to employees who disclosed an addiction, in exchange for their undertaking to go to rehab.  The employee was found to have cocaine in his system when he was tested after an accident on the job.  He had never disclosed an addiction prior to the accident, although he had attended a training session on the drug and alcohol policy.  The Alberta Human Rights Commission dismissed his complaint, finding that the employee was terminated not because of his addiction, but for his non-compliance with the policy, including his failure to reveal his condition and seek treatment. The Commission's decision that there was no prima facie discrimination was upheld by the Alberta Court of Queen's Bench on appeal.

In Huffman v. Mitchell Plastics, the Human Rights Tribunal of Ontario reached a similar conclusion.  Huffman was terminated by the company following grossly inappropriate behaviour at the office Christmas Party.  The employee was drunk, and belatedly claimed that he suffered from alcoholism, which he had 'disclosed' to the employer when he inquired about benefit coverage for the medication "Champix" (commonly used to assist smokers to quit smoking).  The Tribunal found that the Applicant had not properly disclosed his disability or provided sufficient information from which the employer ought to have known that he was an alcoholic.  Accordingly, the employer could not be expected to recognize that it had a duty to accommodate the employee at the point when it terminated him for his conduct.

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Are you struggling to manage an employee's resignation?  Have questions about accommodating an addicted employee?  Feel free to contact Lance Ceaser to obtain advice and guidance.