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
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
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
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
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
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
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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