Employer had just cause based on evidence discovered after
In most cases, employees who commit misconduct will face the
consequences of their actions during their employment, in the form
of discipline or even termination for just cause. But, what if the
employer only learns of an employee's misconduct after the
employee is dismissed without cause? What recourse does the
Mr. Van den Boogaard was a project manager for Vancouver Pile
Driving, a marine contracting company. He was in a supervisory
role, which required him to oversee site safety. He was also
required to enforce drug prohibition policies. Mr. Van den
Boogaard's employment was eventually terminated without cause.
However, he was not happy with the amount of severance offered to
him and started a wrongful dismissal claim against the company.
At the time of his dismissal, the company was unaware that Mr.
Van den Boogaard had been soliciting drugs from his direct
subordinate, including during working hours. After Mr. Van den
Boogaard turned in his company cellphone, however, the company
discovered suspicious text messages from the phone to another
employee. The messages showed that Mr. Van den Boogaard had asked
to buy a variety of drugs from a subordinate employee, including
some of which were listed under the Controlled Drugs and
Based on this evidence, the company took the position that it
had after-acquired just cause to dismiss Mr. Van den Boogaard and
was not liable for any further pay in lieu of notice. The Court
The Court took the same approach to the issue of whether there
was after-acquired just cause as for any just cause termination.
Using the "contextual approach", the Court considered
whether Mr. Van den Boogaard's conduct – taking into
account all the relevant circumstances of his employment –
was objectively and fundamentally incompatible with his continued
employment. In light of Mr. Van den Boogaard's supervisory
authority over the subordinate employee, and his employment
obligations to ensure safety in the dangerous workplace and to
enforce the company's drug prohibition policies, the Court
found that Mr. Van den Boogaard's conduct justified his
termination for just cause.
It was a key part of the decision that the company had no idea
Mr. Van den Boogaard had solicited or purchased drugs from other
employees before his employment was terminated. The Court made it
clear that employers cannot rely on "after-acquired" just
cause for termination if they knew about and condoned the conduct
before the employee was dismissed (for example, by not
investigating and/or disciplining the behaviour).
What does this mean for employers?
If an employee engaged in serious misconduct which was not known
or condoned during their employment, employers should consider
defending a subsequent claim by alleging after-acquired just cause.
Employers may also want to consider a claim or counterclaim against
an employee if he/she committed significant theft or fraud against
the company. In addition, employers can take the following steps to
improve their chances of proving after-acquired just cause:
Make sure expectations for employees' conduct are clear and
consistently enforced. Although Mr. Van den Boogaard tried to argue
that the company had a 'lax' approach to drugs in the
workplace, the company's policies helped show that Mr. Van den
Boogaard's misconduct was not acceptable and was serious enough
to warrant termination without notice.
Investigate allegations of misconduct promptly and
comprehensively, both during and after employment. A full and
prompt investigation will help prevent an argument that the
employer 'condoned' the conduct, in addition to providing
evidence for a subsequent proceeding.
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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