At times, employers despair at the perceived narrowing of the
requirements of just cause for termination. With many
adjudicators focused on progressive discipline, summarily
dismissing an employee, even for serious misconduct, requires
caution and often a well-researched legal opinion.
However, there is some conduct that is simply beyond the
pale. Two recent decisions from the Courts of Appeal in
British Columbia and Alberta provide reassurance that for
outrageous conduct, employers can still dismiss employees before
they do more harm.
1) No, you can't buy drugs from your subordinate
In British Columbia, the case of Van den Boogaard v Vancouver Pile
Driving concerned a project manager at a marine general
contractor. The employee was in charge of the safety of a job
site in a safety-sensitive industry. His employment was
terminated without cause.
When he returned his phone to the employer, text messages were
discovered indicating that the employee had repeatedly purchased
illicit drugs from a subordinate while he was still
employed. The company claimed after-acquired cause for
The employee claimed that if the employer had discovered his
activities while he was employed he would not have been
dismissed. In addition, the employee claimed there was no harm
as a result of his activities, and that there was no subjective
evidence that the employer was concerned about that type of
The Court rejected all of the employee's arguments, and held
that it was a matter of common sense that the misconduct was
something a reasonable employer could not be expected to
The B.C. Court of Appeal found that the trial judge had properly
contextualized the misconduct in the setting of a safety-sensitive
workplace. Notably, the Court of Appeal confirmed that the
employer did not have to show that the
misconduct resulted in harm, or even that it had a specific concern
about the behaviour.
2) One strike and you're out!
Meanwhile, the Alberta Court of Appeal was deciding the case
of Telus Communications v Telecommunications Workers
Union. In that case, the employee had requested time off
for a baseball tournament. After that request had been denied,
the employee suspiciously called in immediately before his shift
that day, complaining of gastric distress and claiming he was
unable to work.
On a hunch, the employee's supervisor went to the baseball
diamond where the tournament was taking place and witnessed the
employee participating in the tournament. In a later
interview, the employee claimed at first he was simply watching the
game. Later, he changed his story and claimed to be pitching,
which, the employee alleged, involved simply "standing
there." He admitted lying about playing baseball but
maintained he was sick. The employee was dismissed.
The employee grieved his termination. Shockingly, the arbitrator
upheld the employee's grievance and he was reinstated on the
basis that the employer "over-reacted" to the
The Court of Queen's Bench struck down the arbitrator's
decision as unreasonable.
The Court of Appeal agreed.
The arbitrator's approach effectively required that the
employer "prove" the employee was not sick. The
Court found that this was an unreasonable burden to put on the
In addition, this was a rare case where an arbitrator's
finding of facts was overturned. Given that the only evidence
supporting the employee was his own testimony and there was a
preponderance of evidence that the employee was not sick, it was
unreasonable to suggest that the employee's story was true.
The Court found that termination was the only possible option
for an employee who had called in sick to play baseball and
repeatedly lied about doing so after the fact. He had totally
destroyed the trust in the relationship.
Judicial decisions on cause are always of value to employers in
shaping disciplinary policy. However, each of these two cases,
with arguably very good facts for the employer, slugged through
various levels of appeal before ultimately resolving at the highest
level of appellate court in each respective province. Before
asserting cause for summary dismissal, prudent employers should
always seek legal advice, regardless how strong the cause.
The new Sexual Violence and Harassment Action Plan Act (Bill 132) imposes a range of new duties in regard to workplace harassment. These include requiring employers to amend their programs to implement workplace harassment policies and establish new rules for the investigation of workplace harassment incidents or complaints.
Receive expert guidance from experienced employment lawyers as to how your organization can comply with this new law painlessly and address workplace harassment effectively
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