ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 07-CV-336923
DATE: 20120322

BETWEEN:

JAROSLAW DZIECIELSKI Plaintiff – and – LIGHTING DIMENSIONS INC., LIGHTING DIMENSIONS LTD., TERRANCE HORNER and DAVID SACKS Defendants

Orie Niedzviecki, for the Plaintiff
Courtney Raphael, for the Defendants

HEARD at Toronto: March 19, 2012

WHITAKER J.

What is this Case About?

[ 1 ] This is judgment following the trial of an action. The plaintiff’s claim is for wrongful dismissal and oppression under the Ontario Business Corporations Act R.S.O. 1990, cB. 16 (“OBCA”).

[ 2 ] The plaintiff employee of 23 years drove the defendant employer’s vehicle without permission and while drunk. He was returning to the workplace from a customer visit. While driving, the employee was responsible for a serious accident which destroyed the vehicle and left him with life threatening injuries.

[ 3 ] The employee was fired for cause. The employee claims wrongful dismissal. He seeks damages for the period of reasonable notice, punitive, aggravated and exemplary.

[ 4 ] The employee claims the defendants engaged in oppressive conduct which now makes it impossible to enforce judgment in the event he obtains damages. This claim is opposed.

[ 5 ] The employee argues that a reasonable period of notice is 24 months.

[ 6 ] The employer alleges cause, and in the alternative, that the employee failed to adequately mitigate his losses.

[ 7 ] For reasons which follow, the wrongful dismissal claim is dismissed. It is not necessary to deal with the issue of mitigation or the oppression claim.

The Wrongful Dismissal Claim: What Happened?

[ 8 ] The defendants are either related corporate entities and/or their principals. I shall refer to them collectively as the “employer”.

[ 9 ] Most of the significant facts are agreed.

[ 10 ] The employer is a small privately held business that produces fabricated materials and fixtures for the automotive industry. Most clients are auto manufacturers.

[ 11 ] The employer was located in Toronto during the relevant times.

[ 12 ] At the time of the dismissal, the employee was 45 years old and had worked for the employer for 23 years. He graduated from high school and had two years of university.

[ 13 ] The employee began his employment with the employer as a labourer. At the point of dismissal he was Vice-President responsible for quality control and standards compliance. No other employees reported to him. The employee reported directly to the principals.

[ 14 ] The employee was paid $60,000.00 a year plus extended health care benefits and a car allowance of $350.00 a month.

[ 15 ] On either February 12, 1998 or December 2, 1998, the employee signed and acknowledged reading an Employee Handbook. The employer takes the position that the provisions of the Handbook simply codified existing obligations and responsibilities.

[ 16 ] The employee was not given any consideration for signing the Handbook. He did not think that he was obliged to sign the Handbook. The employee was not advised to seek independent legal advice before signing the Handbook - nor did he.

[ 17 ] The Handbook indicates that any consumption of alcohol off of the premises while conducting business is prohibited and could result in termination of employment. The Handbook also indicates that consuming alcohol on the job is a violation of a “Major” rule and could result in termination.

[ 18 ] As part of his job duties, the employee was obliged to drive his own vehicle. He also had the use of a company pickup truck.

[ 19 ] On the morning of April 23, 2007, the employee had scheduled a meeting with a customer – the Honda plant in Alliston, Ontario. The employee took the pickup truck to travel to Alliston. He did not ask for permission to use the truck.

[ 20 ] During his examination in chief the employee initially denied that he required permission to use the vehicle. Later he acknowledged that at the time of the accident he knew he was to seek permission.

[ 21 ] Following the morning meeting with Honda in Alliston, the employee began to drive back to the employer’s facility in Toronto. At some point he decided to change course. He drove north on Highway 400 in the opposite direction of Toronto. He decided to travel to Webbers Hamburger shop on the 400.

[ 22 ] The employee didn’t make it as far as Webbers. At some point he stopped at another restaurant for lunch.

[ 23 ] During a one hour lunch, the employee drank four beers. He then got back in the truck and drove south on the 400 in the direction of Toronto. During cross examination, the employee asserted that he was not drunk after lunch.

[ 24 ] During the trip back to Toronto, the employee was in a single truck collision. He lost control of the truck - it went off the road and rolled over several times. Photographs put before me show the truck with most of the cab removed and crushed. There is no glass left and much of the front end missing.

[ 25 ] The employee suffered a broken neck and other life threatening injuries. The employee concedes that he was responsible for the accident and that it was misconduct on his part.

[ 26 ] The employee was airlifted to Sunnybrook Hospital in Toronto. Police obtained a blood sample at the hospital.

[ 27 ] The employee was charged with a number of criminal offences relating to drunk driving. He subsequently pled guilty to one charge under the Criminal Code .

[ 28 ] The employee came to work about five days after the accident when he was discharged from hospital. The employer and the employee agreed at that point that it was premature for him to return to work and he left. Shortly after this, the employee’s wife arrived at work. She came to retrieve some personal items and indicated to the employer that the employee may not return.

[ 29 ] By letter of May 23, 2007, the employer wrote to the employee and told him that his employment was terminated with cause. Three reasons were mentioned: driving the company vehicle without authorization; damage to the vehicle and the pending criminal charge for being under the influence of alcohol or drugs. He was also advised that he had breached the corresponding provisions of the Employee Handbook.

[ 30 ] The employee made a claim for benefits from the Workplace Safety and Insurance Board, which was denied.

[ 31 ] The employer made an insurance claim for the truck. The insurer wrote off the truck. The insurer complained to the employer that the employee did not assist in the adjustment of the claim.

[ 32 ] Following the termination, the employer learned that the employee had an earlier licence suspension while receiving a car allowance.

[ 33 ] Before the accident, the employee had no history of misconduct or performance issues.

The Law – Just Cause

[ 34 ] The relevant principles of law are not in dispute.

The Investigation

[ 35 ] While there is no obligation on the employer to conduct a particular type of investigation before deciding to dismiss with cause, the onus is clearly on the employer to have regard to all the facts necessary for a full and fair understanding of what occurred. In other words, the employee has no procedural rights in the employer’s investigation, but the employer must make a decision on the basis of all of the relevant facts and considerations. ( Porta v. Weyerhaeuser Canada Ltd., 2001 BCSC 1480 )

A Single Isolated Event

[ 36 ] Normally, a single and isolated incident will not be sufficient cause to dismiss a long service employee, particularly one with a clean disciplinary and performance record. The one single event must be particularly egregious to justify dismissal with cause. Depending on the severity of the misconduct however, one act or incident may justify termination of employment. ( McKinley v. BC Tel , 2001 SCC 38 )

Intoxication

[ 37 ] Intoxication at work does not automatically justify termination. Again, the circumstances of the intoxication and the nature of the work in question will provide part of the context that must be considered by the employer. Where for example the job requires drinking alcohol with potential clients, intoxication alone should not be sufficient to establish cause. On the other hand an aircraft pilot who is intoxicated before a flight may be dismissed with cause due to the relationship between the conduct and the essential features of the work. ( Birchall v. Canadian Helicopter Ltd. 1998 CarswellBC 3161 and MacDonald v Northern Breweries Ltd . 1989 CarswellOnt 3273 )

A Contextual Analysis

[ 38 ] Essentially, there must be a contextual analysis of all of the circumstances to permit an assessment of whether the penalty is proportional to the misconduct and undermines the employment relationship. If the penalty is overly harsh, it will not amount to cause even in the face of an admission of wrong doing.

[ 39 ] In the Law of Summary Dismissal in Canada (Toronto: Canada Law Book, 2011) at paragraph 13:210 the late learned Justice of this court, R.S. Echlin provided an excellent summary of factors which should be considered to determine whether an employee’s misconduct justifies dismissal:

The following factors are relevant to a determination as to whether an employee’s misconduct justifies dismissal:

• whether the employee was guilty of serious misconduct;

• whether the employee’s impugned behaviour or act was merely conduct with which the employer disagreed, or “trifling causes”, rather than transgressions or misconduct which any reasonable person could not overlook;

• whether the employee’s misconduct was inconsistent with or prejudicial to the employer’s business, and therefore in breach of an implied term of the employment agreement;

• whether the employee’s misconduct was in breach of an express provision of the employment agreement; and

• whether the misconduct merely reflects the employee’s poor judgment or inadvertence.

In the case of criminal conduct, the following factors are relevant:

• whether the employee was culpable for the alleged criminal conduct, or misconduct of a criminal nature;

• whether the conduct was prejudicial or inimical to the employer’s legitimate business interests;

• whether the conduct was in breach of the implied duty of fidelity, or fiduciary duty, or an express condition of employment, and therefore in breach of the employment agreement;

• whether there is evidence of actual harm or evidence substantiating potential harm to the employer.

Discussion of the Facts and the Law

[ 40 ] Dealing first with the adequacy of the employer’s investigation, the employer waited one month between the incident and the date of the letter advising the employee that he had been dismissed with cause. While the employer certainly could have provided the employee with an opportunity to explain his conduct, it would appear that the employer had at the time of the dismissal, a full appreciation of all of the relevant facts and circumstances. Indeed, there was no information provided by the employee at trial which was not already within the knowledge of the employer at the time of the dismissal.

[ 41 ] While it is always prudent for an employer to hear the employee’s “side of the story” before acting, it cannot be said in this case that there was a deficiency of consideration and knowledge of the relevant circumstances at the time of dismissal.

[ 42 ] Accepting that this is a single isolated event, and that intoxication alone may not justify dismissal generally, I now turn to the context of the employee’s conduct. In doing so, I have regard to the factors listed by Echlin J. that are appropriate to the facts and issues in this case.

[ 43 ] The following considerations are to the employee’s favour; he is now middle aged, without a university degree or other certification, has spent most of his entire working life with the employer, and for these reasons may be particularly challenged in his efforts to re-enter the labour market. The employee has a clean record of discipline and there are no complaints about performance. In particular, there has been no concern about the use of alcohol or unsafe conduct generally. These considerations render any dismissal particularly harsh and may be considered in weighing the proportionality of the misconduct to the employer’s response.

[ 44 ] Turning now to considerations which assist the employer in justifying dismissal, there are several.

[ 45 ] The employee was certainly guilty of serious misconduct in the course of employment while operating the employer’s vehicle and which attracted criminal sanction. I consider the fundamental nature of this to be drunk driving rather than just “intoxication.

[ 46 ] Increasingly, drunk driving is considered now within society at large be a very serious criminal offence which attracts significant minimum sentences. Drunk driving is potentially lethal conduct and in this case the employee is extremely lucky to have survived and to not have injured or killed others travelling on the public highway. To reiterate, the misconduct here is not just intoxication while working, but rather drunk driving on a public highway with the employer’s vehicle.

[ 47 ] Whether or not the Employee’s Handbook is strictly binding on the employee, I must conclude in any event that the employee must have understood that in drinking four beers and then driving the truck, he was in breach of a serious workplace rule and the criminal law. Any reasonable person must have understood that this was very serious misconduct.

[ 48 ] The employee’s conduct was prejudicial to the employer’s business. The employer may have been at risk of being found vicariously liable to third parties, and may be at risk to WSIB claims and premium consequences. Customers and suppliers may think less of the employer if it is thought that the employer could not properly control and direct its employees. The employer’s reputation and good will may be adversely affected.

[ 49 ] The employee’s conduct damaged the employer’s property while in the course of employment.

[ 50 ] Although I give it little weight, I am troubled by the employee’s suggestion during his evidence that he was “not drunk” at the time of the event. This suggests that to some degree, he resists taking full responsibility for his conduct, despite the guilty plea to a criminal offence.

[ 51 ] Applying those factors described by Justice Echlin in his text which are relevant to the type of conduct here, I conclude that within the particular context of this case, this single act of drunk driving during this long service, is not just bad judgment or inadvertence. I find the employer has met its onus of demonstrating sufficient and just cause for the dismissal of this employee.

Mitigation and the Oppression Action

[ 52 ] As I have found the dismissal from employment to be with cause, it is not necessary to deal with the reasonableness of mitigation and the oppression claim.

Costs

[ 53 ] At the conclusion of the hearing the parties provided me with Cost Outlines and their submissions to costs in the event of success.

[ 54 ] The employee sought just over $46,000 as partial indemnity in the event he was successful. The employer requests $28,898.83 in partial indemnity costs if successful.

[ 55 ] I have considered the factors set out in Rule 57 which should guide the exercise of my discretion to award costs, particularly the reasonable expectations of the parties as evidenced by the cost submissions heard.

[ 56 ] The employer is entitled to its costs fixed at $28,898.83, inclusive of taxes and disbursements, payable forthwith.

Outcome

[ 57 ] The employee’s claim is dismissed.

[ 58 ] Order accordingly.

Whitaker J.
Released: March 22, 2012

COURT FILE NO.: 07-CV-336923
DATE: 20120322

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JAROSLAW DZIECIELSKI Plaintiff – and – LIGHTING DIMENSIONS INC., LIGHTING DIMENSIONS LTD., TERRANCE HORNER and DAVID SACKS Defendants

REASONS FOR JUDGMENT

Whitaker J.

Released: March 22, 2012