Background

Mr. Klonteig was a firefighter for 23 years. In 2008, he became the Assistant Fire Chief for the City of West Kelowna (the “City”, formerly known as the District of West Kelowna), a position he maintained until his dismissal. He had an unblemished employment record and, by all accounts, was an exemplary employee.

On October 7, 2013, Mr. Klonteig was off-duty and driving home after a night out with his wife when he was pulled over by an RCMP officer for suspected impaired driving. Mr. Klonteig was driving the City-issued vehicle of Fire Chief Wayne Schnitzler, which Chief Schnitzler had given him permission to drive. After failing two breathalyzer tests, the RCMP officer issued Mr. Klonteig a 90-day administrative driving prohibition (“ADP”) and impounded the City vehicle.

Mr. Klonteig reported the incident to Chief Schnitzler later that morning. The two men then discussed the incident with the City’s Manager of Human Resources, Patty Tracy. Both Chief Schnitzler and Ms. Tracy concluded that a suspension of employment was an appropriate sanction. However, the City’s Chief Administrative Officer ultimately made the decision to terminate Mr. Klonteig’s employment for cause.

Following the termination of his employment, Mr. Klonteig struggled to maintain consistent employment and did not return to his career as a municipal firefighter. Mr. Klonteig sued the City for wrongful dismissal.

Decision

Applying the principles in McKinley v. BC Tel, 2001 SCC 38, the Court determined that the City did not have just cause to terminate Mr. Klonteig. In accepting that off-duty conduct may amount to cause for termination, the Court found that that the just cause threshold will only be met when the at-issue off-duty conduct is or is likely to be prejudicial to the interests or reputation of the employer, and that Mr. Klonteig’s ADP fell below this bar.

The Court distinguished between the public trust and confidence required in individuals acting as police officers, compared to the requisite level for other municipal employees (including firefighters). The ongoing support that Mr. Klonteig received from his peers was also significant, and supported the Court’s conclusion that members of the public were unlikely to lose confidence in Mr. Klonteig if his peers still supported him. The Court also noted the City vehicle he was driving was unmarked, there was no public knowledge of his administrative suspension, and Mr. Klonteig held an administrative, rather than public-facing role.

In the result, the Court concluded Mr. Klonteig’s ADP was not incompatible with the faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the City. The Court found the moral reprehensibility an ADP to be lower than conduct in other off-duty conduct cases (e.g. possession of child pornography, consorting with a prostitute on company premises, or engaging in a dishonest tax scheme) where just cause was established.

Conclusion

Klonteig provides employers a useful framework to consider when making the decision to terminate an employee for misconduct occurring outside working hours. Factors to be taken into account include:

• the moral reprehensibility of the conduct;
• the requisite public trust and confidence demanded in the employee’s role;
• the degree to which the employee’s role is public-facing;
• the trust and confidence maintained (or lost) in the employee by his or her peers; and
• public knowledge of the conduct.

This decision is also a helpful reminder that the courts will assess these incidents on a case-by-case basis, and that they may take various mitigating and exacerbating circumstances into account when assessing whether an employer has cause for dismissal.

Note: This a reprint of an article by Monique Running of McCarthy Tetrault.