A recent case from the Ontario Superior Court is serving as a reminder to employers that mere suspicion – no matter how sure you are – is never enough to warrant just dismissal.
Accused of numerous misgivings, such as repeatedly being under the influence of alcohol while at work, employee Larry Volchoff was terminated for cause by Wright Auto Sales.
Volchoff, who was the manager of the companys Cambridge, Ontario operation, was accused of attending a managers’ meeting smelling of alcohol and had been the subject of a customer complaint that he had been drunk at work.
Co-workers also claimed to have seen Volchoff driving a company vehicle while intoxicated.
While the allegations are undoubtedly serious, the employer’s failure to due diligence resulted in the case unravelling in court. Here’s why.
“Mr. Volchoff admitted that he had one glass of wine prior to the managers' meeting while having lunch at a nearby restaurant,” begins a spokesperson for Toronto labour and employment law
firm, Stringer LLP.
“Although at trial Wright asserted it had a zero-tolerance for alcohol policy, there was no written policy at the time,” they continue. “Further, when confronted about the incident, Mr. Volchoff was not reminded of the alleged policy and warned that he could not drink during working hours. Instead, he was simply told that he needed to be responsible with alcohol at work.”
In regards to the customer and co-worker complaints, the details were deemed too vague to justify termination.
“Although Wright conducted an investigation into the internal complaint, it never provided Mr. Volchoff with the specifics of the allegations or an opportunity to respond,” explains Stringer LLP.
“Nor were there any specific allegations, only vague comments that he was sometimes red in the face or smelled like alcohol. At trial, witnesses testified that Mr. Volchoff had smelled of alcohol on occasion; however, none saw him exhibit symptoms that would impair his ability to do his job or drive a car, for instance, slurred speech, unsteadiness on his feet, or change in his personality.”
The court found that the employer, in this case Wright Auto Sales, has based its decision on vague allegations which, although numerous, couldn’t satisfy the high standard required to prove just cause.
What HR should know
“There are a number of takeaways from this case,” says the Stringer LLP spokesperson. “First, employment policies of this magnitude of importance should be committed to writing, and all policies must be clearly communicated to employees and consistently enforced.
“Second, workplace investigations must be handled with care. When conducting an investigation the employer should ensure that it has collected sufficient detail and evidence regarding the allegations. Equally important, but often missed, the employee must be provided sufficient information about the allegations and a bona fide opportunity to respond.
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