The District of West Kelowna did not have just cause to dismiss a firefighter whose licence was suspended for failing a breathalyzer test in 2013, according to a provincial court ruling.
“The District argues that (Kerry) Klonteig’s conduct was incompatible with his duties, in particular, his responsibility for ensuring public safety, and incompatible with the District’s ‘business’ in that it put the taxpayers at risk for substantial exposure,” Justice Heather MacNaughton writes in a provincial court decision published this week.
“I have concluded that the District did not have just cause to dismiss Mr. Klonteig and that his dismissal was wrongful.”
Klonteig’s troubles began Oct. 7, 2013 when he was on a “date night” with his spouse. He was crossing the William R. Bennett Bridge when he was pulled over by Constable Troy Bevan of the RCMP for suspected impaired driving.
After failing two roadside breathalyser tests, Klonteig received a 90-day administrative driving prohibition, and the vehicle which he was driving, then-Chief Wayne Schnitzler’s District pick-up truck, was impounded.
Although the pick-up truck had a fleet number on its rear tailgate, it was not decaled and bore no other indications that it belonged to the District or the fire service.
“While I accept that conduct which occurs while off duty may amount to cause, as was the case in some of the decisions relied on by the District, in my view such conduct must be or be likely to be prejudicial to the interests or reputation of the employer,” said Justice
“In this case, Mr. Klonteig was not representing his employer when he engaged in the conduct that led to the suspension of his licence. The vehicle he was driving, although belonging to the District, was unmarked as such. There was no public knowledge of Mr. Klonteig’s administrative suspension.”
McNaughton goes on to say thatKlonteig was not the public face of the Fire Department and his role was more administrative, so it did not affect public faith. She also pointed out that Klonteig’s co-workers weren’t fazed by the incident.
“There was no evidence that the public at large would have been offended by Klonteig’s lack of judgment being sanctioned by a lengthy suspension without pay,” she said, adding therefore off-duty conduct was not incompatible with his faithful discharge of duties or otherwise prejudicial to the interests or reputation of the District, and that his termination was without cause.
Klonteig is limited to the five months’ salary provided for in his employment contract. Based on his rate of pay at the date of his termination, he is entitled to $42,325. During that five-month period, Mr. Klonteig received $7,452 in unemployment insurance benefits which either he or the District will be required to repay. I expect that counsel will be able to work out the repayment obligation amongst themselves.
Klonteig has been successful in establishing that his termination was without cause and should also be entitled to reimbursement for his costs of the proceeding.
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