There are certain circumstances in which the duty to mitigate does not arise. The first is where there is a termination clause in an employee’s employment agreement which does not expressly require an employee to mitigate their damages during the applicable period of notice. The second is with respect to an employee’s minimum statutory entitlements under employment standards legislation, including an employee’s entitlement to notice/Termination Pay and Severance Pay, which an employee is entitled to receive regardless of their mitigation efforts.
Previous court decisions have confirmed that an employee’s conduct outside of work may form the basis for the termination of their employment. However, not all misconduct outside of work will constitute just cause, as confirmed in the recent British Columbia Supreme Court case of Klonteig v. District of West Kelowna, 2018 BCSC 124.
The plaintiff, Kerry Klonteig (“Klonteig”), was a firefighter employed by the defendant, District of West Kelowna (the “District”), as an Assistant Fire Chief.
In the early morning hours of October 7, 2013, Klonteig was driving home after a “date night” with his wife, when he was pulled over by a Royal Canadian Mounted Police for suspected impaired driving. He failed two roadside breathalyzer tests and received a 90-day licence suspension. The vehicle he was driving was also impounded. At the time, Klonteig was off duty but the vehicle was the Fire Chief’s designated vehicle which had the fleet number on the rear but was otherwise unmarked.
Klonteig immediately reported the incident to the Fire Chief and the Human Resources Advisor. They initially believed that the suspension of Klonteig’s licence was for 24-hours and considered the possibility that the incident might result in a reprimand. However, as the length of the suspension became clear, the matter was escalated to the District Chief Administrative Officer (the “DCAO”) and Klonteig was suspended.
Up until that point Klonteig was considered an excellent employee and he had a clean record. Nevertheless, the DCAO decided that Klonteig’s employment with the District should be terminated. Both the Fire Chief and the Human Resources Advisor disagreed with the DCAO that termination was appropriate and tried to persuade him to consider a lesser sanction. However, the decision rested with the DCAO, who was angered by the risk to public safety and potential liability to taxpayers created by Klonteig’s actions. As a result, he did not follow the recommendations of the Fire Chief and the Human Resources Advisor and Klonteig’s employment was terminated for cause.
Klonteig brought a claim for wrongful dismissal.
The Court accepted that conduct which occurred while off duty could amount to just cause but held that “such conduct must be or likely to be prejudicial to the interests or reputation of the employer.” In this case, the Court found that:
- Klonteig was not representing the District when he engaged in the conduct that led to the suspension of his licence;
- the vehicle driven by Klonteig at the time of the incident, although it belonged to the District, was unmarked; and
- there was no public knowledge that Klonteig had received an administrative suspension.
The Court accepted that the District’s community members would expect a senior employee, in a department dealing with the protection of the public and public safety, to avoid risk of public harm. However, Klonteig was not the public face of the Fire Department and his duties were mainly administrative. The Court also distinguished between a firefighter and a police officer, “who are in a unique position with respect to public trust and confidence in their ability to discharge their duties.”
The Court also held that, if Klonteig’s colleagues, whose job it was to be the first response to fire scenes involving impaired drivers, had not lost confidence in him, it was difficult to conclude that members of the public at large would do so.
Therefore, the Court concluded that Klonteig’s termination was without cause because his off-duty conduct was not “incompatible with the faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the District.”
Although, the Court found that Klonteig was wrongfully terminated, damages were limited to five months’ pay in lieu of notice in accordance with the termination clause contained in Klonteig’s employment agreement.
This case highlights that even if an employee’s behaviour appears to be reprehensible and inconsistent with the terms of their employment, it may not be sufficient to establish “just cause”. Consideration should be given to what prejudice, if any, the alleged misconduct has caused to the interest and reputation of the company and the employee’s actual duties and role in the company.
Employers are encouraged to proceed with caution when relying on off-duty conduct as grounds for dismissal. Similarly, employees should not assume that they cannot challenge an employer’s decision to terminate their employment, even if their off duty conduct is questionable.
As an aside, it is also interesting to note that although Klonteig had been wrongfully terminated, damages were significantly reduced because of the termination clause contained in his employment agreement. This emphasizes the importance of having a well drafted and legally enforceable employment agreement.
Our team is here to assist you. Whether you are an employer requiring assistance in handling the off duty conduct of an employee or an employee who find themselves the subject of disciplinary action as a result of your off duty conduct.