Giving a moose a ride in company vehicle costs a worker his job

By Tony Poland, LegalMatters Staff • A man who gave a moose a ride in the cab of his company pickup truck in contravention of corporate policy should probably have expected to get fired, says Toronto employment lawyer Ellen Low.

However, there are legal nuances every employer should consider before deciding to terminate any employment relationship, no matter the circumstance, she says.

“Even in light of what seems like quite obvious misconduct, due diligence is a must,” says Low, principal of Ellen Low & Co. “Keep in mind that in Ontario, if an employer alleges cause and there is really no basis, that can attract aggravated and punitive damages if the case was to proceed to trial. And it should also be noted that there appears to be an upward trend in courts seriously considering awarding these types of damages.

“I suggest that it may be worth at least a phone call to get legal advice to ensure the perception of misconduct has a basis in case law. Otherwise, it may be difficult to defend against any sort of wrongful dismissal lawsuit,” she tells LegalMattersCanada.ca.

Drove moose calf in cab of pickup

Last July, a Fort Nelson, B.C., man was fired after driving with a moose calf in the cab of his company pickup.

Mark Skage told CBC News he noticed the calf alone on the side of the road. The animal had almost been struck by traffic, he said, so he decided to pull up to try to scare her off the highway and back to safety. 

He opened his car door and the calf went to him and tried to climb inside. Skage says he then spotted a bear in the area. After the calf’s mother failed to appear he says he decided to take the moose with him.

He called the B.C. Conservation Officer Service and several days later the calf was taken to a wildlife rehabilitation centre.

When his employers found out, they fired Skage, saying his actions breached the company’s protocols around interactions with wildlife.

“Instead of reporting the situation to a conservation officer and allowing the authorities to handle the rescue and relocation of the moose, the individual made the independent decision to transport an uninjured moose calf, a wild animal, in the front seat of his company vehicle for many hours,” AFD president Dale Reimer said in an emailed statement to CBC.

“This not only put the employee and other road users at risk but also potentially caused distress and harm to the moose.”

The company rejected Skage’s claims of a nearby bear.

‘Caused distress and potential harm to the moose’

“The only actions which put the animal in danger were those of Mr. Skage. Not only did he put himself and other road users at risk by capturing and transporting this animal but also caused distress and potential harm to the moose, having failed to contact conservation authorities at any point,” Reimer added.

Skage told CBC News he understands he could be charged for his actions and is willing to pay any fines but he still believes he did the right thing.

“It is against the law to pick up wild animals off the road or from out in nature, anywhere. It is illegal to be in possession of wildlife and transport wildlife,” Skage told CBC.

• What happens when you get a work promotion you don’t want?
• Technology advances bring new workplace challenges
• AI can be a helpful tool for the legal profession if used responsibly

Low, who is not involved in the case and comments generally, says admitting fault can be beneficial.

“The fact that he is contrite in retrospect may actually help him in the event that he decides to proceed with litigation,” she says. “There is an argument to be made that if you were terminated on a with-cause basis and you acknowledge what you did leading up to the termination was wrong, that actually can be a mitigating factor.”

In these types of circumstances, Low says an employer would have an obligation to “do some sort of cursory investigation into the circumstances giving rise to the incident and the employee’s rationale for being in breach of company policy.”

“It is important to remember that policies that are properly implemented effectively form a contract between employers and employees,” she explains. “If an employee breaches a condition of a policy, that could be considered a breach of contract, which may give rise to discipline up to and including termination.” 

Threshold to be met

Low says if an employee is fired for cause, employers are not obligated to pay severance. However, there is a threshold to be met, she adds

“Under Ontario’s Employment Standards Act, 2000 (ESA), termination and severance pay is only obviated where the employee has engaged in willful misconduct which is not trivial and has not been condoned,” says Low. “In Ontario, judges are increasingly considering whether the conduct is sufficiently serious enough to breach an ongoing employment relationship, which is now kind of separate and apart from what we are calling the willful misconduct threshold.”

After investigating the incident, the employer would be expected to explain to the employee why there was a breach of policy, she says.

“The employee’s rationale and contrition about the breach may factor into whether the employer believes the employment relationship has been irrevocably damaged and must be severed,” says Low.

In their defence, an employee may be able to prove that the policy was unclear or they had not been properly trained or informed of the consequences of a violation, she says.

“To be terminated for cause, and not receive at least their ESA entitlements, an employee would have to know what they were doing was wrong but do it anyway,” says Low. “That would effectively remove any entitlement to termination and severance pay in accordance with the ESA.

“My advice is that any employer who is contemplating terminating someone on a with-cause basis should speak to a qualified employment lawyer to determine their chances for success.”