Alcohol on employee’s breath at meeting launches months of allegations and vague threats against him — and $48,000 in wrongful dismissal damages
Employees who drink on the job can be a serious problem for employers that should be addressed promptly. However, like all instances of employee misconduct, the employer has an obligation to investigate properly so it knows as much of the facts as possible so it can determine its course of action. And in most instances of misconduct investigation and determining just cause for dismissal, hearsay won’t cut it.
It’s also important for employers to make sure employees know when something is specifically prohibited. A policy banning certain behaviours by employees is all fine and good, but it isn’t worth much if employees aren’t told about it -- especially if the policy is a zero-tolerance one.
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, was a manager of Wright Auto Sales, an automobile dealership in Cambridge, Ont., starting in August 2012. Volchoff rain the dealership, conducted his own sales and supervised the 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. He usually had lunch at a restaurant in Waterloo before going to the meeting, often consuming a glass of wine.
No-one raised any concerns or complaints about Volchoff’s practice of having a glass of wine at lunch 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 that 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 replied that 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, though he couldn’t tell him 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 and he also didn’t instruct anyone else 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 on the way home. Often when he did this, he would have one or two glasses of wine. He didn’t have enough wine to feel intoxicated, but he still made sure that if he stopped back at the Cambridge dealership after his Waterloo trips, he wouldn’t do work or deal with customers. Instead, he just asked the staff what was going on before he went home.
Accusations of drinking on the job
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 that 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. 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 still 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 getting any specifics or a chance to respond.
No warnings or details of allegations
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 Wednesday. 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 that he had a glass of wine at lunch that day as well as at subsequent meetings with Wright management. However, there were no signs that 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 for him to respond to. Without anything specific to address, Volchoff 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 so he took them instead of distributing them to the sales staff. There was no indication this complaint referred to Volchoff consuming alcohol during work hours, and some staff members that testified never had difficulties working with him.
The court found there was 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 had 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 it “at best was ambiguous.” Volchoff was told to be responsible at work, which Volchoff understood and made sure he was, 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.
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