The British Columbia Court of Appeal recently reaffirmed that
when an employee is terminated "without cause", but the
employer then unearths misconduct which justifies a "for
cause" termination, the employer can rely on the misconduct as
a full defence to a claim of wrongful dismissal.
In the case of Van den Boogaard v. Vancouver Pile Driving
Ltd., 2014 BCCA 168, Vancouver Pile Driving originally
terminated Mr. Van den Boogaard on a without cause basis. As part
of a severance package, Vancouver Pile Driving offered Mr. Van den
Boogaard four weeks' salary in exchange for a release.
Following his termination, the company requested that Mr. Van den
Boogaard return his company issued cellphone. When they received
the phone, the company reviewed its contents and found out that Mr.
Van den Boogaard had been soliciting a subordinate employee for
drugs. Mr. Van den Boogaard helped develop the employer's drug
and alcohol policy, was responsible for its enforcement, and was in
charge of managing safety at a safety sensitive worksite. In the
words of the Court of Appeal, Mr. Van den Boogaard was
"expected to supervise his drug dealer in a safety sensitive
When Mr. Van den Boogaard brought a wrongful dismissal action
against Vancouver Pile Driving for damages in lieu of reasonable
notice at common law, the company argued that he no longer had the
right to reasonable notice or payment in lieu of notice due to his
recently discovered misconduct. Mr. Van den Boogaard argued that he
would not have been dismissed had the company found out about the
texts during the course of his employment. The British Columbia
Supreme Court and Court of Appeal disagreed, finding that the
solicitation of drugs from a subordinate in the circumstances went
to the root of the employment relationship and justified
termination for cause, regardless of when it was discovered.
It is important for employer's to remember that
after-acquired cause arguments are typically successful only in
situations where the employer had no knowledge of the misconduct at
the time of the termination. If Vancouver Pile Driving had been
aware of Mr. Van den Boogaard's behavior when they terminated
him without cause, they may not have been able to rely on the
evidence of his misconduct when faced with a wrongful dismissal
The case provides several important reminders for employers:
While it is standard practice to have employees return company
issued devices on termination of employment, consider whether it
may be appropriate to:
review the contents of the device. There may be relevant
records and important to determine any unknown issues or
properly secure the information contained on the device (for
privacy and confidentiality).
Employers should ensure their policies reflect the nature of
access and review the employer would like to have over the device
and information on it in the case of an investigation or
review. Use policies should include warnings regarding
discipline and termination for violations and be acknowledged by
Beware of the prospect that an employer's knowledge of
misconduct at the time of termination may be viewed by a Court as
condoning the behavior if the employer does not act on it.
Evidence of after-acquired cause can be used. After
discovery of it, an employer may be able to revise its position on
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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