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Off-Duty Conduct and the High Threshold for Summary Dismissal

Discipline and Dismissals

While some off-duty conduct can justify discipline and even dismissal, the recent case of Hydro One Inc. and Power Workers’ Union Union (HO-T-3737) confirms that the threshold for summary dismissal is high, and that even driving a company car while off-duty and drunk may not be enough. The decision also confirmed the importance of considering all mitigating factors, including addiction.

The grievor, Jesse MacHale (“MacHale”), was employed by Hydro One Inc. (“Hydro One”) as a Regional Maintainer I-Electrical. On March 19, 2018, his employment was terminated for operating a Hydro One vehicle for personal purposes and driving while under the influence of alcohol.

On February 16, 2018, MacHale was granted permission to take a Hydro One vehicle home so that he could use it to attend work the following day. On his way from work, MacHale stopped to purchase alcohol and then stopped to socialize at two friend’s homes, where he consumed a fair amount of alcohol. On his way home, he drove into a tree. 

MacHale told the police and Hydro One that he struck a tree while swerving to avoid a deer. However, an investigation later revealed that he was not telling the truth. It was not until after he was confronted with the evidence that MacHale finally admitted that he had consumed alcohol on the night of the incident and that he had lied about the deer. 

As a result, his employment with Hydro One was terminated for cause. MacHale brought a grievance against Hydro One, claiming that he was suffering from alcoholism at the time of the incident. 

At the time of his dismissal, MacHale was employed with Hydro One for over fourteen years and was a Health and Safety member, Accident Investigator and a Ministry of Labour Safety Instructor. He had previously been disciplined for health and safety related dishonesty.   

The arbitrator confirmed that alcoholism and addiction to drugs are disabilities that engage human rights legislation and may require accommodation. The arbitrator also cautioned that alcoholism or addiction does not absolve or shield an employee from a disciplinary response to their misconduct. It may, however, be a mitigating factor that must be considered when determining the appropriate disciplinary response.  

The arbitrator held MacHale’s actions were very serious, it involved a serious breach of trust, dishonesty and criminal misconduct. However, as Stuart discusses at length in his book, You’re Fired! Just Cause for Dismissal in Canada, misconduct is not to be considered in isolation when assessing whether summary dismissal is appropriate. Rather, all relevant factors are to be taken into account. 

After reviewing the evidence, including a medical report, the arbitrator concluded that MacHale was indeed suffering from alcoholism at the time of the incident. The arbitrator found that there was a causal connection between MacHale’s actions and his alcohol addiction. The arbitrator noted that alcohol abuse was a factor in the accident and MacHale’s dishonesty was in relation to covering up his alcohol-related misconduct. The arbitrator held that although MacHale was not intoxicated when he lied to the police or Hydro One, his conduct must be examined as a continuum and that the dishonesty related to the disability.  

Subsequent to his dismissal, MacHale sought rehabilitative treatment and provided evidence of his continuing sobriety. As a result, the arbitrator determined that MacHale was deserving of a last chance. Notably, in the absence of any admission and rehabilitation efforts, termination would have been justified.

Ultimately, the Arbitrator also concluded that the employment relationship could be salvaged and that MacHale could return to work safely. As a result, just cause for dismissal did not exist, since just cause means that the relationship had been irreparably harmed.

The arbitrator substituted the dismissal for a time served suspension, coupled with strict terms and conditions. 

This case highlights the fact 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”. Courts and arbitrators will consider all relevant factors and circumstances, including any relevant addiction, as well as the employee response when confronted. In this case, the employee’s efforts to rehabilitate were an important factor.

Employers are encouraged to proceed with caution when relying on any 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. 

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. 

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