In a recent decision, a Canadian appellate-level court confirmed that employee misconduct discovered after a without-cause termination may be relied upon by an employer in support of a later argument of just cause for termination.
In this case, the appeal court upheld the just-cause termination of a senior manager responsible for safety when his employer discovered—after having terminated his employment without cause—that he had used his company cell phone to solicit illegal drugs from several people, including a direct subordinate (Van den Boogaard v. Vancouver Pile Driving Ltd., 2014 BCCA 168).
Kirk Van den Boogaard was hired as a project manager for Vancouver Pile Driving Ltd., a large marine general contractor, on December 11, 2011. He was considered to be a senior manager and was responsible for the safety of a jobsite in a high-risk, safety-sensitive, and heavily regulated industry.
Van den Boogaard’s core duties included workplace safety, safety training, and enforcement of drug-prohibition policies. During his employment, he participated in the creation of a core value statement for the company and created policies regarding safety, legal, and regulatory risks.
Van den Boogaard’s employment was terminated without cause on February 13, 2013, and he was provided with four weeks’ base salary in lieu of notice. As part of the termination package, he was required to return his company cell phone.
A short time later, Van den Boogaard brought an action against Vancouver Pile Driving for wrongful dismissal, seeking enhanced termination payments. By this time, Vancouver Pile Driving had reviewed the records of his company cell phone and had located a series of text messages he sent, many of them sent during working hours, seeking to solicit illegal drugs from a number of individuals, including from an employee under his direct supervision.
As a result, Vancouver Pile Driving defended Van den Boogaard’s action by alleging after-acquired just cause for termination, such that no further notice or pay in lieu of notice was owing.
At trial, Van den Boogaard admitted that he had used his company cell phone to solicit and procure illegal drugs from his direct subordinate. He also admitted that it was possible he had consumed illegal drugs with that employee after work.
Vancouver Pile Driving argued that Van den Boogaard’s actions amounted to a gross breach of his employment contract and of its core value statement, sufficient to establish just cause for termination. It further argued that his misconduct had undermined the safety of the jobsite and prevented him from properly overseeing risk and safety management in the workplace.
The trial judge agreed with Vancouver Pile Driving that asking a direct subordinate to procure illegal drugs was incompatible with Van den Boogaard’s duties as a project manager responsible for safety matters at a high-risk jobsite. As his misconduct went to the heart of the employment relationship, Vancouver Pile Driving had just cause for the termination of his employment.
Van den Boogaard appealed the trial judge’s finding of just cause for termination to the provincial court of appeal. Among other arguments, he alleged that the trial judge had failed to properly consider the full context surrounding his misconduct. He argued that had the trial judge engaged in a proper analysis, the judge would not have found just cause for termination.
The court of appeal dismissed Van den Boogaard’s arguments and upheld the decision of the trial judge. The court of appeal commented that Van den Boogaard’s misconduct and his admissions at trial exhibited a serious lack of judgment in a safety-sensitive workplace that justified the termination of his employment for just cause.
Takeaway for employers
This decision confirms that employers may rely on employee misconduct discovered post-termination in support of an argument of termination for just cause. Such terminations will be upheld, provided that the underlying factual context would have constituted just cause had the misconduct been discovered prior to termination.
This decision also suggests that employers operating in heavily regulated, high-risk industries may be justified in holding their managers and supervisors to higher standards of conduct in recognition of their key role in monitoring and enforcing workplace safety.