Bulldog Energy Group Ltd. v Brown, 2024 ABESAB 9 is a recent employment standards appeal decision from the Alberta Labour Relations Board relating to the appeal of an Officer’s Order directing an employer provide termination pay in lieu of notice under the Alberta Employment Standards Code.
Vice Chair William Armstrong dismissed the appeal, reaffirming that it is a very high standard for an employer to establish just cause for dismissal. In this case, the employer was able to establish that the employee Steven Brown (“Mr. Brown”) had driven a company vehicle to a bar, spent five hours there, was seen drinking, and drove the vehicle back to the job site. However, the employer could not prove that the employee was impaired when they operated the vehicle and therefore did not have just cause for dismissal.
Facts
The background to the claim as described in the decision is as follows:
- The employer allowed “trapped” employees (employees from out of province) to use company vehicles for personal purposes, subject to availability.
- On January 14, 2023 Mr. Brown drove a company vehicle to the Mannville Hotel. The bar at the hotel is one of the few places to socialize in the area.
- According to the vehicle’s GPS records, the vehicle was at the Mannville Hotel from 8:52 p.m. until 1:56 a.m.
- One of the employer’s supervisory employees (“Mr. Haley”) was at the bar from 7:00 p.m. to 10:00 p.m. and saw Mr. Brown sitting at the bar with a beer bottle in his hand.
- The following Monday the Mr. Brown testified that he was told by a supervisor that it didn’t look good to have a company vehicle parked outside a bar. Brown said that following that discussion he did not take a company vehicle to the bar again.
- Haley contacted the owner of the bar to ask how many drinks Mr. Brown had on the night of January 14. He testified that the bar owner figured it was at least 8 or 9 beers before Mr. Brown drove the company crew truck back to the shop.
- On February 1, 2023 the employer terminated Mr. Brown’s employment for cause on the basis that Mr. Brown had violated the company driving policy by operating a vehicle under the influence.
Analysis / Conclusion
The Board emphasized that the onus is on the employer to establish just cause on a balance of probabilities. The basis for termination identified by the employer was Mr. Brown “operating a company vehicle under the influence” and that was the only issue being considered on appeal.
The employer did not call the bar owner to provide evidence as to how many beers Mr. Brown had consumed, and other than Mr. Haley seeing him with a beer bottle did not have any direct evidence or witnesses that Mr. Brown had been drinking. The Panel concluded that Mr. Brown had consumed one or more beers because he had been observed with a bottle in his hand, but there was insufficient evidence to determine how many.
Furthermore, there was no evidence that Mr. Brown was impaired while driving – no observations of his driving, no breathalyzer test, and no field sobriety test. Because there was insufficient evidence to conclude what Mr. Brown’s state of sobriety was while driving, it was not possible to conclude that he was driving “under the influence”.
The Board also noted that an argument that the employer had just cause to terminate Mr. Brown’s employment was inconsistent with: (1) Mr. Haley not taking any action when he left the bar and saw Mr. Brown’s vehicle outside, despite the employer’s purported “zero tolerance” for drinking and driving; and (2) the employer allowing Mr. Brown to continue working for 2 weeks, during which time he continued to drive the employer’s vehicles without restriction, before terminating his employment.
Ultimately, it was found that the employer had failed to establish the claimed misconduct had occurred on the facts and that that the employer’s own conduct after the incident undermined any argument that just cause for dismissal was a proportionate response in the circumstances.
My Take
Dismissal for just cause is easy to allege, but difficult to prove. Where an employer has rushed to claim termination for cause, an employee has the ability to challenge that assertion. This case highlights that the onus is on the employer to establish not only that the alleged misconduct occurred, but that the misconduct was sufficiently serious that it is incompatible with the employment relationship continuing. Although it was not an issue in this case, an employer who maintains a claim of just cause for dismissal but is unable to prove it can expose themselves to claims of bad faith or aggravated/punitive damages in addition to damages for wrongful dismissal.
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