The B.C. Court of Appeal has upheld the for-cause termination of
a supervisor who used text messages to solicit and obtain drugs
from an employee under his supervision. Safety was one of the
supervisor's responsibilities in an industry described as
"high risk" and "safety-sensitive".
The supervisor was a project manager of a pile driving
company. The company fired the supervisor, alleging that he
had misused a company gas credit card and a B.C. Ferries card, as
well as failed to pay for a hotel bill. After the
termination, when the supervisor returned his company cell phone,
the company found text messages from him soliciting drugs from an
employee under his supervision. The primary drugs were
Dexedrine and clonazepam, both prescription medications which are
"listed substances" under the federal Controlled
Drugs and Substances Act. The company relied on the text
messages as "after-acquired cause" for dismissal.
The supervisor sued in court for wrongful dismissal. In written
argument, he agreed that he had a senior and important role, that
safety was a very important function at the company, and that he
supervised safety. He agreed that it was his role to set an
example. He admitted the possibility that he consumed illegal
drugs with the employee.
The trial judge stated that it did not matter whether the
supervisor's solicitation happened at work or offsite.
Also, it did not matter that, as the supervisor alleged, others in
the company smoked marijuana at a company party. The trial
judge decided that the company had just cause to fire the
The B.C. Court of Appeal agreed, stating:
"Vancouver Pile Driving defended Mr. Van den Boogaard's
dismissal, alleging after-acquired cause. Mr. Van den Boogaard
admitted he engaged in criminal conduct with a person over whom he
had direct supervisory authority, including the ability to hire or
fire. He had a high level of responsibility as a project manager on
a worksite in one of the highest accident risk industries. He was
responsible for site safety and effective execution of all projects
under his control. He worked without supervision. He was
responsible for the implementation of drug policies. He was
expected to supervise his drug dealer in a safety sensitive
workplace. He exhibited lack of judgment. As the trial judge found,
'asking an employee under his supervision to procure illegal
drugs is misconduct that goes to the root of the employment
relation'. The employment relationship could not be restored in
As this case illustrates, employers – particularly those
in safety-sensitive industries – are entitled to hold their
supervisors to high standards of safety.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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