SaskTel workers brew up trouble with truck (Legal view)

Workers drank before crashing company vehicle but didn’t deserve to be fired: Arbitrator
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 12/06/2011

Two Saskatchewan Telecommunications (SaskTel) employees who consumed alcohol before crashing a company truck — as well as having open beer in the vehicle — deserved serious discipline but termination was too harsh, an arbitrator has ruled.

Justin Nokonechny and Ron Salter were field technicians for SaskTel in Regina, installing and maintaining telephone lines in the southeastern part of the province. Neither had been subject to any discipline during their service with SaskTel — more than 12 years for Nokonechny and more than 11 for Salter — and they received very good performance reviews.

On Dec. 11, 2009, they were assigned to work on the installation of a new system that would increase the telephone capacity in the area of Grenfell Beach, Sask. Consistent with normal procedure, the two men were to visit the work site to evaluate what was required to do the job. The actual work would follow the next day.

The men surveyed the site but found the contractor had not installed a pedestal to house the new telephone system so they determined there wasn’t much more they could do that day and returned to base to do paperwork.

By the time they arrived at the local district office, it was nearly 3 p.m. Since the two men had skipped lunch, they decided to quit for the day. It was common practice for SaskTel employees to finish work one hour early if they didn’t take a lunch or other breaks.

The two men decided to use the extra time to visit the parents of a co-worker who had died three months earlier. They picked up a bottle of rum as a gift and proceeded to the parents’ home.

Nokonechny and Salter stayed at the home for about one hour. During the visit, each man had one or two small glasses of rum mixed with pop. As they left, the father gave them each a beer “for the road,” which they opened as they got into their SaskTel truck and started on the way back to Regina. Nokonechny said he felt fine to drive and Salter thought his companion was fine as well.

However, the truck hit a patch of black ice on the highway and Nokonechny lost control. The truck hit a ditch and rolled. Neither man was injured but the truck, worth about $33,000, was a writeoff.

When police arrived, they administered a roadside alcohol test to Nokonechny, which he failed. At the police station, he did not fail a breathalyzer test but his licence was suspended for 24 hours and he was ticketed for driving without due care and having open liquor in a vehicle.

While Nokonechny was at the station, Salter called their manager to inform him of the accident. He admitted they had had a couple of drinks, had beer in the truck and Nokonechny would probably “blow yellow” on the breathalyzer.

The following Monday, the two men were interviewed separately. Nokonechny confirmed his licence was suspended but said he had not been arrested or charged. Nokonechny thought they were asking about criminal charges and didn’t mention the tickets. Later that day, both men were suspended without pay pending further investigation.

SaskTel later decided to terminate the employment of the two men for “socializing during work time” and violating its code of business conduct, which explicitly prohibited consuming alcohol and driving a company vehicle or having open alcohol in a company vehicle.

The policy stated violations would be grounds for disciplinary action “up to and including dismissal.” SaskTel also noted Nokonechny had been charged with offences for which he had been ticketed but he had not revealed these when interviewed.

Union files grievances

The union filed grievances, claiming their misconduct was grounds for discipline but not dismissal, especially considering their spotless records.

The arbitrator acknoweldged the consumption of alcohol at work in a company vehicle was serious misconduct. However, there was no indication Nokonechny was legally impaired, he said. He didn’t fail the breathalyzer test and only received a temporary licence suspension as a warning.

And the circumstances that led to the two of them consuming alcohol weren’t planned as the two men had decided, on the spur-of-the-moment, to visit their deceased co-worker’s family, said the arbitrator.

In addition, the vehicle they were in was a regular-sized vehicle, as opposed to a large commercial truck, and they considered the time to be after work hours, said the arbitrator.

Both Nokonechny and Salter had clear disciplinary records, along with favourable performance reviews. And since they were upfront about their misconduct and apologized for their actions, it was most likely the incident was a “one-off” and wouldn’t be repeated, he said.

SaskTel’s history of disciplining employees for similar misconduct was also considered and most cases where an employee was found to have consumed alcohol at work resulted in a suspension, found the arbitrator. In the only instance where an employee was fired in relation to alcohol, he was reinstated in the grievance procedure.

Nokonechny and Salter appreciated the seriousness of their misconduct and their records showed the employment relationship was not irreparably damaged, said the arbitrator.

“I am satisfied (the two employees) appreciate the seriousness of their misconduct,” he said. “In my view, significant discipline short of discharge ought to be sufficient warning to others not to mix alcohol with work.”

SaskTel was ordered to reinstate Nokonechny and Salter with four-month unpaid suspensions substituted for discipline and to compensate them for lost pay for the remainder of the 22 months since their terminations, minus their earnings in subsequent jobs.

For more information see:

•Saskatchewan Telecommunications v. C.E.P., 2011 CarswellSask 664 (Sask. Arb. Bd.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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