Home Featured Bulldog Energy didn’t have cause to fire worker who took company truck to bar, stayed for 5 hours: Board

Bulldog Energy didn’t have cause to fire worker who took company truck to bar, stayed for 5 hours: Board

by HR Law Canada

Bulldog Energy Group Ltd. did not have just cause to fire a worker who used a company vehicle to visit a local bar, the Alberta Labour Relations Board has ruled.

The company appealed a ruling that directed it to give termination pay to the worker of $2,475 — including $2,250 for pay in lieu of notice and $225 for the Order of Officer fee.

The appeal, heard by video conference, centered around the events of Jan. 14, 2023, when S.B., a “trapped” employee due to his lack of personal transportation in Alberta, used a company vehicle to visit a local bar. The key issue was whether S.B. had driven the vehicle under the influence of alcohol, as alleged by Bulldog Energy.

GPS records show truck at bar

According to the testimony, GPS records showed the company vehicle at the Mannville Hotel from 8:52 p.m. on Jan. 14 until 1:56 a.m. on Jan. 15. S.B. admitted to being at the hotel and driving the vehicle but denied consuming alcohol.

He claimed he was at the bar socializing with workers from Mexico and did not drink any alcohol. Contrarily, an operations supervisor for Bulldog Energy testified seeing him with a beer bottle in hand between 9 p.m. and 10 p.m.

The employer’s case relied heavily on the supervisor’s observations and a subsequent report indicating that S.B. consumed a large quantity of beer, based on information from the bar owner. However, the board found this evidence insufficient.

“In his email, (the supervisor) refers to the (S.B.) consuming 8-9 beers that evening, based on information from the bar owner,” the board said. “When initially asked about what the bar owner had told him, (the supervisor) said 3-4 beers.  When shown the email and pressed on the issue, (he) was not certain how many beers the bar owner had said.”

The bar owner was not called as a witness because the supervisor did not want to involve him, the board noted.

Character of employees questioned

Bulldog Energy also argued that the supervisor’s evidence should be accepted over S.B.’s testimony, because the supervisor was “viewed as a good employee and (S.B.) is clearly not,” the board said.

“This amounts to arguing that (the supervisor) is a truthful person while the respondent is a liar, in the eyes of the (employer),” the board said. “This is not a proper basis to resolve credibility issues and as such, the general character of either witness was not a factor in this decision.”

Bulldog Energy then put forward a different idea: That no one would be in a bar for about five hours and have nothing alcoholic to drink. The board rejected that notion, stating that while spending that amount of time in a bar “may raise suspicion of consuming alcohol, it is not proof of that fact.”

It also said it was difficult to understand the supervisor’s lack of action that night. When he left the bar, he saw the company truck outside.

“Knowing that the only other employee inside the bar is (S.B.), a reasonable supervisor would have taken steps to ensure that the Respondent would not drive either by telling the Respondent to walk back to camp or even by taking the vehicle keys,” it said. “However, (the supervisor) simply walked back to camp.  He explained his actions by saying he did not want to assume the Respondent would drive back.”

Worker allowed to keep working, use company vehicle

Moreover, the Board noted inconsistencies and procedural gaps in Bulldog Energy’s actions post-incident. Despite alleging just cause, the company allowed S.B. to continue working and using company vehicles for two weeks following the event.

“The Appellant’s own conduct after the incident…undermines any argument that it considered the employment relationship to be no longer viable,” the ruling emphasized. “The only explanation (Bulldog Energy) offers is that it wanted to investigate the matter before making a decision.”

But the only investigation that happened was checking the GPS records, which was done on Jan. 15, and the communications between the bar owner and the supervisor, which was completed by Jan. 19, it said.

Ultimately, the Board concluded that Bulldog Energy failed to meet the burden of proof required to establish just cause for termination. The decision upholds the original order directing Bulldog Energy to pay Brown $2,250 in termination pay and a $225 Order of Officer fee, totaling $2,475.

Lessons for Employers and HR Professionals:

  1. Concrete Evidence is Crucial: Relying on hearsay or circumstantial evidence is insufficient in justifying termination for cause. Employers must gather direct, credible evidence to support their claims.
  2. Consistency in Actions: Allowing an employee to continue working under normal conditions after an alleged incident can undermine the argument for immediate termination for cause. Employers must act consistently with their policies and the severity of the alleged misconduct.
  3. Adherence to Policies and Procedures: Employers should ensure that all actions, especially those involving termination, strictly adhere to established policies and procedures. Deviations can weaken the case for just cause and lead to unfavorable rulings.

For more information, see Bulldog Energy Group Ltd. v Brown, 2024 ABESAB 9 (CanLII).

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