Buying drugs from subordinate is just cause for dismissal

  • The case is here: Van den Boogard v. Vancouver Pile Driving Ltd., 2014 BCCA 168  
  • Plaintiff was a senior manager responsible for the safety of a job site in a high risk, safety-sensitive, heavily regulated industry 
  • His core duties included workplace safety, safety training, and enforcement of drug-prohibition policies
  • He participated in the creation of a core value statement for the company and created policies in respect of safety, legal and regulatory risks for the company
  • Plaintiff’s employment was terminated on a without-cause basis in February 2013
  • Plaintiff sued for wrongful dismissal
  • After the Plaintiff returned the company cell phone, the employer discovered he had sent a number of text messages, many during work hours, to solicit drugs from, among others, an employee he supervised
  • Defendant’s defence in the wrongful dismissal action was based on after-acquired cause for dismissal (based on the discovery of the texts)
  • The trial judge dismissed Plaintiff’s claim
  • The trial judge found that the Plaintiff’s conduct was “seriously incompatible with his duties as a project manager for major contracts. Soliciting illegal drugs from an employee under his supervision was misconduct that went to the heart of the employment relationship and created a conflict of interest” [paragraph 7]
  • The Plaintiff appealed
  • The BC Court of Appeal dismissed the Plaintiff’s appeal, finding that (a) the trial judge did not fail to apply the contextual approach mandated by McKinley v. BC Tel, 2001 SCC 38 (CanLII) and (b) the trial judge did not make a palpable and overriding error in finding cause

If an employer discovers it would have had cause to dismiss an employee after it has already dismissed an employee on a without-cause basis, the employer can rely upon the after-discovered cause to defend against a wrongful dismissal claim.

Although it is easy to analyze litigation decisions in retrospect, I question whether the Plaintiff would have been well-served by adducing more evidence supporting his assertion that the employer had a relaxed attitude about drug use and procurement. As the Court of Appeal stated at paragraph 34: “If an employer knew of the misconduct and had expressly or implicitly condoned it, then claims of after-acquired cause will be defeated.”

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