Employers need 'real evidence of wrongdoing and not just suspicions': lawyer
“The onus of proving just cause is on an employer - they need to be coming into any form of hearing, whether with Employment Standards or in a court, with real evidence of wrongdoing and not just suspicions.”
So says labour and employment lawyer Dylan Snowdon of Carbert Waite in Calgary, after the Alberta Labour Relations Board found that an employer claiming just cause for dismissal had no real evidence to support it other than inferences.
The worker was an operator with Bulldog Energy Group, an oilfield equipment supplier based in Nisku, Alta. He worked at a small camp in Mannville, Alta.
The worker was from Eastern Canada and flew to Alberta to work. As a result, he didn’t have a personal vehicle and was considered a “trapped” employee. Bulldog allowed trapped employees to use company vehicles for personal purposes with a supervisor’s permission.
January 14, 2023, was a Saturday, and the worker had a company vehicle for the weekend. He drove it to the local bar, which was one of the few places to socialize in the area. He stayed there for several hours, spending part of the evening talking to a group of workers who were on assignment in the area. They sat at a table and many of them drank beer, but the worker said he didn’t because he would be driving the company vehicle back to the camp.
Worker drove company vehicle to bar
A Bulldog supervisor was also at the bar from 7 p.m. for about three hours. He saw the worker sitting alone at the bar with a beer bottle in his hand.
When the supervisor left around 10 p.m., he saw a company vehicle parked outside. He assumed that the worker had driven the vehicle, but he didn’t do anything as he didn’t think the worker would drive back to the camp.
The next morning, the supervisor saw the same vehicle back on company property. He checked the vehicle’s GPS records, which showed that it had been had the bar until 2 a.m. before being driven back. He reported it to management, saying that the bar owner had told him that the worker had consumed three to four beers.
When the worker reported for work, another supervisor told him that it didn’t look good to have a company vehicle parked outside a bar late in the evening, but the worker said he didn’t take the vehicle to the bar.
Bulldog asked the supervisor who had been at the bar for a written statement, so the supervisor wrote that the worker “had a few beer.” He said that after he left, he texted the bar owner who estimated that the worker had consumed “at least eight to nine beer and then drove the crew truck back to the shop later that evening.”
The worker continued to work at the camp for the next two weeks, using company vehicles for work and personal purposes, while Bulldog considered its actions. Nothing was said to him after the comment from the supervisor after he was seen at the bar.
Termination of employment
On Feb. 1, Bulldog terminated the worker’s employment for violating the company’s corporate driving policy “by operating a vehicle under the influence.” The company said that this violation, combined with the written warning, was “enough to terminate your employment with cause.”
The worker filed a claim for termination pay under the Alberta Employment Standards Code. He argued that the company had no proof that he was impaired on Jan. 14 and its only evidence was an eyewitness report that he had one beer bottle in his hand. He also pointed out that the company had no written policy on drinking and driving and it didn’t follow the procedures in its substance abuse policy.
A provincial employment standards officer investigated and ordered Bulldog to pay the worker termination pay in lieu of notice of $2,250 plus a fee of $225. Bulldog appealed to the board, maintaining that it had just cause for termination and it had “zero tolerance” for drinking and driving with a company vehicle.
The board noted that the onus is on the employer to establish just cause on a balance of probabilities, which in this case was the worker “operating a company vehicle under the influence” of alcohol.
The board found that the supervisor sincerely reported that he saw the worker at the bar alone, and the worker’s story that he was with people at a table could be true if it happened after the supervisor left.
No evidence of just cause
However, the board also found there was no definitive evidence that the worker was drinking that evening. The supervisor only saw him holding a bottle and there was a discrepancy between his initial report and his written report on how many beers the bar owner had told him the worker had consumed. At any rate, the bar owner’s information was hearsay and couldn’t be relied upon, the board said.
Bulldog argued that no one would be in a bar for several hours and not have anything alcoholic to drink, but the board wasn’t prepared to make this assumption without hard evidence – particularly since the bar was one of the few places in town to socialize.
Based on the supervisor’s observations, there was only evidence that the worker consumed “one or more beers” but not enough to make him “under the influence” when he drove the company vehicle several hours later, said the board.
“The supervisor didn't go over and talk to [the worker], he didn't remind him not to drive, he didn't take any steps to determine whether he was drinking or not,” says Snowdon. “The company says they spoke to the bar owner who served a large number of drinks, but if you want that evidence, you need to be bringing that witness forward – there are many potential avenues to collect that evidence, but [Bulldog] showed up at the hearing without any.”
“I think the company made some choices not to involve others to keep things simple, but the end result is that they didn't have the evidence to uphold just cause,” he adds.
The arbitrator agreed that Bulldog didn’t follow the steps of confronting an employee under its substance abuse policy, but those steps were in the context of an employee suspected of impairment at work, said the board.
Zero tolerance
The board also found it odd that the supervisor didn’t take any action when he saw the company vehicle outside the bar, if Bulldog had a zero-tolerance policy for drinking and driving. In addition, while impaired driving is a criminal offence, it isn’t zero-tolerance – there is a blood-alcohol threshold that a person may not exceed by consuming one or more beers over several hours, said the board.
“Zero-tolerance policies often run into problems where the court expects employers to make an actual assessment of what happened in every circumstance rather than just a blanket, one-size-fits-all response to any circumstance that gets called a breach of zero tolerance,” says Snowdon.
The board determined that Bulldog could only establish that the worker was seen at a bar holding a beer bottle before 10 p.m., which fell “well short of establishing on a balance of probabilities that he was under the influence at 2 a.m. the following morning.”
The board also noted that Bulldog allowed the worker to continue working for two weeks after it learned of the incident. While this could have been for an investigation, there was no indication of any investigation other than the supervisor checking the GPS records of the vehicle and texting the bar owner, said the board in dismissing the appeal.
Snowdon sees how some employers could find a decision like this frustrating, given the pressures on making a decision to terminate for just cause.
“One of the elements that the labour board discussed was that you have to decide on just cause quickly, and [Bulldog] delayed two weeks in making their decision and allowed him to drive during those two weeks, and that was used as evidence that the company didn't view it as a particularly serious situation,” he says. “And, of course, that’s the opposite of the advice that employers generally get, which is don't make decisions too quickly - have a complete and thorough investigation for deciding on just cause terminations.”
“But once you get into the details, the issue was that the two-week delay wasn't used to undertake a thorough investigation, it seems to have been for no real reason,” adds Snowdon. “Had there been a complete investigation, then perhaps that time wouldn't have been problematic, but because there wasn’t the issue seems to be that the delay makes it seem like it's not a serious situation.”
