When is 'zero tolerance' really zero tolerance?

Discussing recent Alberta case, Calgary employment lawyer says ‘loosey-goosey’ zero tolerance polices won’t fly

When is 'zero tolerance' really zero tolerance?

A recent ruling by the Alberta Labour Relations Board (LRB) reaffirms for employers how important it is to get zero tolerance policies in writing.

The decision, Bulldog Energy Group Ltd. v Brown, 2024, found that Bulldog Energy Group had not provided sufficient evidence to prove an employee had violated a drinking and driving policy when he drove a company truck to a bar and was seen by a supervisor “with a beer bottle in his hand.”

The employer claimed it fired the employee because he violated the “zero tolerance” alcohol and substance abuse policy, but according to Chris Jones, employment lawyer at Bow River Law in Calgary, the actions of management after the alleged violation discounted that claim.

"They talked about how they had a zero tolerance policy, but they never actually put it in writing,” he says. Not only that, before the employee was terminated, he continued working without restriction for two weeks following the incident, including operating vehicles as before.

To prove just cause for termination, employment relationship must be broken

To successfully allege just cause for termination, an employer needs to prove that the misconduct was so harmful to the employment relationship that it would be impossible to continue, says Jones.

“Yet, for several weeks after they believed that this misconduct had occurred, they continued the employment relationship; and not only that, they allowed the employee to continue operating a company vehicle without restrictions,” he says.

“So there was a pretty significant disconnect between the employer allowing that to happen, while also saying, ‘We can't possibly continue the employment relationship because of what happened.’ Those two things really could not be reconciled, and so I think that was definitely a concern for the decision-maker in this case.”

Zero tolerance breach: what happened?

On Jan. 14, 2023, the employee drove a company vehicle to a hotel near the job site, where he spent roughly five hours, the LRB decision detailed. During that time, a supervisor of Bulldog Energy observed the employee as “sitting alone at the bar, near a television, and had a brown beer bottle in his hand. He did not see the [employee] sitting with others. He cannot say with any certainty how much the [employee] drank that evening, only that he saw a beer bottle in his hand,” the board wrote.

The next day, the employee was informed by his supervisor that it was inappropriate to have a company vehicle parked outside a bar. The employee testified that he did not take the vehicle to the bar again. The bar owner was contacted, who estimated the employee had consumed at least eight or nine beers that night before driving the vehicle back to the job site. The employee continued working for another two weeks, and no one spoke to him about the incident before he was terminated – a fact that did not go unnoticed by the LRB.

“If the employer believes that there has been a breach, it's important that they act like it and take appropriate steps,” says Jones. “In this case, the employer's actions weren't consistent with some form of misconduct that was so serious they couldn't continue the employment relationship.”

Zero tolerance policies: not one size fits all

On Feb. 1, 2023, Bulldog Energy terminated the employee for violating the company’s driving policy by allegedly operating a vehicle under the influence.

“Although the [employer] does not have a written policy on drinking and driving, it says it has a zero tolerance for any degree of impairment while driving. It points to the [employer’s] Substance Abuse Policy as proof of this,” the board wrote.

Zero tolerance policies are hard to uphold if they are not being enforced consistently, Jones says, and when designing policies such as these, there must be allowances for context.

“Best practice would be to avoid a ‘one size fits all’ approach,” he says. “The reason is that there's going to be a distinction between somebody who is aware of this policy and knowingly breaches it because they felt like it, versus somebody who does have an alcohol dependency, and they're not fully in control of their actions because of this mental disability, because of the addiction.”

An effective way to ensure employees are aware of their responsibility to disclose any addictions or other factors that could prevent them from adhering to a zero tolerance policy, is to create a “carve out” in the policy, says Jones, “where the employer identifies that if there's a disclosure of any issue, they have assistance programs in place and are willing to work with the employee; basically, so that the employee has an off-ramp to get help if they need it.”

Insufficient evidence of violation of zero tolerance

Additionally, the LRB noted that no observations of Brown’s driving behavior, no breathalyzer tests, and no field sobriety tests were conducted. The bar owner’s estimation of the employee’s beer consumption had been only hearsay – a fatal flaw on the employer’s part, Jones says.

“It claimed that it had cause for dismissal because the individual was impaired while operating a vehicle, but they didn't have any evidence of anyone who saw the employee, with slurred speech or actually operating the vehicle while impaired or driving erratically, or anything like that. It was entirely based on [the fact] a supervisor saw him holding a beer four hours before he left a bar.”

An appropriate approach to this situation, Jones surmises, would have been to put the employee on a paid administrative leave while the company investigated, then once they had all the facts, to decide if the misconduct warranted termination.

“But in this case, they acted like everything was fine,” he said. “If the employer has a policy that they intend to rely on, it's important that they apply it consistently, because if they're not, and they treat it as a loosey-goosey — ‘Sometimes we'll honour it, sometimes we won't’ – a court or other decision maker is going to look at that and say, ‘Well then, if you aren't applying it consistently, what's written in it doesn't really mean what it says.’"

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