Manager’s drink at lunch not a breach of vague zero tolerance policy: Court

Alcohol on auto manager’s breath leads to months of allegations, vague threats — but ends up with $48,000 in wrongful dismissal damages in Ontario
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 02/22/2016

An Ontario employer’s vague policy and unsubstantiated allegations were not enough to constitute just cause to dismiss an employee for drinking on the job, the Ontario Superior Court of Justice has ruled.


Larry Volchoff, 66, had been a manager at Wright Auto Sales, an automobile dealership in Cambridge, Ont., since 2012. Volchoff ran the dealership, conducted his own sales and supervised staff at the dealership. He scheduled his own hours but worked six days per week. During Volchoff’s tenure, the dealership increased its sales.


As part of his duties, Volchoff had to attend managers’ meetings with Wright Auto Sales’ operations manager in nearby Waterloo, Ont., every Wednesday afternoon at 3 p.m. Volchoff usually had lunch at a restaurant in Waterloo, including a glass of wine, before going to the meeting.


No one raised any concerns or complaints about Volchoff’s practice of having a glass of wine until Feb. 12, 2014, when the receptionist in Waterloo smelled alcohol on his breath when he arrived for the weekly meeting. The smell wasn’t strong and there was no indication Volchoff was intoxicated, but the receptionist told another manager Volchoff “may want to use a breath mint.”


After the meeting, the operations manager and the controller asked Volchoff if he had been drinking. Volchoff said he had a glass of wine at lunch but nothing else. The operations manager said they and other employees could smell alcohol on his breath and while he couldn’t tell Volchoff what he could or couldn’t do at lunch, he had to be responsible with alcohol at work. 


Nothing was mentioned about a zero tolerance policy towards alcohol, nor had any been in place during Volchoff’s time with Wright Auto Sales. In addition, they didn’t say Volchoff couldn’t continue to have a glass of wine at lunch before the managers’ meetings.


The controller claimed she told Volchoff there would be “repercussions” if he continued to drink alcohol during work hours but the operations manager did not say this and didn’t instruct anyone that was the case. Volchoff got the impression that having a glass of wine at lunch before the weekly managers’ meeting wasn’t prohibited, but he had to be responsible and not be intoxicated during work hours. As a result, he continued his weekly lunchtime practice.


Sometimes, after the meeting, Volchoff would go to the same restaurant to grab a snack or get takeout food. Often when he did this, he would have one or two glasses of wine. While he didn’t have enough wine to feel intoxicated, he made sure that if he stopped back at the Cambridge dealership, he wouldn’t do work or deal with customers. Instead, he just checked in with staff before he went home.


Customer complaint

On March 10, 2014, Volchoff was called to the Waterloo office and told by the operations manager and the controller that a customer had complained Volchoff was drunk in the dealership on the previous Sunday afternoon. Volchoff denied he had consumed any alcohol that day.


The operations manager told Volchoff there was a zero tolerance policy for drinking alcohol on work premises during work hours. However, there was no such policy in writing anywhere in the company, so Volchoff didn’t understand what they were talking about or that they were telling him he couldn’t have a drink at lunch. 


He maintained that the only alcohol he consumed during working hours was the glass of wine at lunch on Wednesdays before the managers’ meeting.


Three months later, on June 11, Volchoff was called to the Waterloo office once again. Once there, Wright management informed him that staff at the Cambridge dealership had accused him of driving a company vehicle while impaired and being at work while intoxicated.


Volchoff was shocked and immediately denied the accusations. Management refused to give him any details on the accusations or who made them, but told Volchoff they were going to investigate. Volchoff was suspended for one week with pay and told again there was a zero tolerance policy at Wright Auto Sales. 


When asked if he had a substance abuse problem, Volchoff denied it. The suspension letter indicated he would be given an opportunity to answer the allegations at a meeting on June 16.


At the next meeting, Wright management told Volchoff they had statements from staff and proof that the allegations were true. The names of the staff members were withheld as the company didn’t want to jeopardize Volchoff’s relationship with them if he returned to work. However, he was given a termination letter without being given any specifics or a chance to respond.


No warnings or details

Volchoff admitted he drank one glass of wine before the Wednesday managers’ meetings and sometimes one or two after, but he never drank on company premises or at any time other than Wednesdays. None of his staff had ever mentioned any concerns to him about alcohol consumption and he was never told not to have alcohol at lunch. As a result, he filed a claim for wrongful dismissal.


The court found it was likely Volchoff had the smell of alcohol on his breath at the Feb. 12, 2014, meeting, as he admitted he had a glass of wine at lunch that day as well as at subsequent meetings with Wright management. However, there were no signs Volchoff was actually intoxicated — no slurred speech, no difficulties with balance, or any other indications.


The other allegations that followed — the customer complaint and the accusations that Volchoff was drunk at work and drove a company vehicle — were “third-hand hearsay” for which no details were given to Volchoff that he could respond to. 


Instead, he could only continue to deny the allegations and there was little real evidence  to support just cause for dismissal, said the court.


The court also noted that none of Volchoff’s staff complained to Volchoff before they allegedly complained to upper management. In fact, as it turned out, the dealership’s staff complained in June 2014 that Volchoff had changed Internet sales leads whereby he took them rather than distributing them to the sales staff. But there was no indication this complaint referred to Volchoff consuming alcohol during work hours, and some staff members who testified said they never had difficulties working with him.


The court found there were no specific allegations made by staff members that Volchoff was intoxicated at work and Wright Auto Sales had no evidence beyond the smell of alcohol on Volchoff’s breath. Volchoff explained the reason for the smell and there was nothing indicating his ability to do his job was hindered, said the court.


The court also found that if Wright’s Auto Sales had a zero tolerance policy regarding alcohol consumption during work hours, Volchoff wasn’t given any information about it and the policy “at best, was ambiguous.” Volchoff was told to be responsible at work, which he understood and acted accordingly, said the court.


In addition, the court noted Volchoff was “a trusted employee whose work record was excellent” and “at no time was he warned that his job was in jeopardy or that his breach of this rule in the future could lead to his dismissal.”


The court determined Wright Auto Sales did not have sufficient evidence to prove it had just cause to dismiss Volchoff. In fact, there was no evidence Volchoff ever consumed alcohol during work hours other than on the weekly Wednesday meeting days.


Volchoff only had two-and-a-half years of service at the dealership but held an important position, so the court ruled he was entitled to five months’ notice. After deductions for Volchoff’s earnings from another job he found within the notice period, this amounted to $48,557.68.


For more information see:

•Volchoff v. Wright Auto Sales Inc., 2015 CarswellOnt 19856 (Ont. S.C.J.).


Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

Add Comment

  • *
  • *
  • *
  • *