Canada: Don't Forget To Check Those Text Messages! After-acquired Cause Upheld For Its "Criminal" Nature In Safety Sensitive Industry

In Van den Boogaard v. Vancouver Pile Driving Ltd., 2014 BCCA 168, the B.C. Court of Appeal unanimously affirmed that a supervisor's conduct of procuring drugs from an employee under his/her supervision will support a finding of just cause, even when the employer discovers the misconduct after the supervisor had already been terminated on a without cause basis.


Mr. Van den Boogaard, a senior project manager, was responsible for the safety of a job site in a safety sensitive industry. His core duties included workplace safety and the enforcement of drugprohibition policies.

After approximately two years of employment, he was terminated on a without cause basis and provided four weeks' salary in lieu of notice. When he returned the company's property, the employer discovered a series of text messages on his company cell phone. These text messages were sent to a unionized employee he supervised for the purpose of soliciting and procuring drugs.

After Van den Boogaard was terminated, he brought a wrongful dismissal claim, alleging he had been provided with inadequate pay in lieu of notice. The employer responded to the claim by alleging after-acquired cause. It alleged, in part, that Van den Boogaard had used the company cell phone to procure and solicit drugs from an employee he supervised. At trial, Van den Boogaard admitted to this misconduct and admitted that he "may" have used drugs with this particular employee, but only after work.

The employer argued that this conduct amounted to a gross breach of the trust required of him as a senior manager. It said that soliciting illegal drugs from an employee went to the heart of the employment relationship.

Trial Court Decision

The trial judge agreed with the employer and found that procuring illegal drugs is misconduct that goes to the root of the employment relationship.

Court of Appeal Decision

On appeal, Van den Boogaard argued that the trial judge did not apply the McKinley contextual approach properly, but instead took a strict and inflexible approach when determining whether there was just cause. He argued that the employer had a lax attitude towards drugs and the trial judge should have considered that this was largely off-duty conduct with a subordinate who was also a friend. Van den Boogaard asserted that had the employer discovered this conduct while he was still employed, he would not have been terminated for just cause and noted that the employer did not submit evidence to the contrary. By ignoring this evidence the trial judge made a blanket ruling that soliciting and procuring illegal drugs was automatically incompatible with a supervisorsubordinate relationship.

Van den Boogard did not find a a sympathetic ear at the Court of Appeal. The Court found that the trial judge did not make a blanket ruling, but clearly gave more weight to the fact that Van den Boogaard was in a position of responsibility on a dangerous job site.

Van den Boogaard also argued that the trial judge had made a palpable and overriding error when he found that there was afteracquired cause to terminate his employment. He argued that there was no evidence that his actions affected the safety of the workplace or that any misconduct took place during work hours. The Court of Appeal disagreed. The Court held that the employer is not required to provide evidence of actual negative consequences: it is sufficient to show a risk of harm.

Van den Boogaard then argued that because the employer did not expressly state that procuring drugs from a subordinate could lead to termination, just cause could not be upheld. The Court of Appeal disagreed again, noting that the McKinley test has an objective element. The question the court must answer is whether the misconduct is something a reasonable employer could not expect to overlook, having regard to the nature and circumstances of the employment.

The fact that the employer only learned of the misconduct after Van den Boogaard was terminated was of no consequence. All the employer was required to show were facts subsequent to the dismissal that were sufficient to warrant termination for cause.

Takeaways for Employers

Employers can rely on misconduct discovered after terminating an employee to change a without cause termination to a termination for cause. A termination for cause negates an employer's obligation to provide notice or pay in lieu of notice.

When terminated employees return company devices, take the time to look through the text messages, emails and internet history. You never know what you might find.

Any criminal conduct that you discover could be used to protect yourself from liability for a wrongful dismissal claim. This is particularly true for employees who are in positions of authority or where the misconduct could impact safety.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Julie Menten
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