A recent decision of the British Columbia Court of Appeal confirms that employee misconduct discovered after a without cause termination may be relied upon by an employer in support of an argument of just cause for the termination. InVan den Boogaard v. Vancouver Pile Driving Ltd. (PDF), 2014 BCCA 168, the Court of Appeal 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.

Background

Kirk Van den Boogaard was hired as a project manager for Vancouver Pile Driving Ltd. (“Vancouver Pile Driving”), a large marine general contractor, on December 11, 2011.  Mr. Van den Boogaard was considered to be a senior manager and was responsible for the safety of a job site in a high-risk, safety-sensitive and heavily-regulated industry. His core duties included workplace safety, safety training, and the enforcement of drug-prohibition policies. During his employment, he participated in the creation of a core value statement for the company and created policies in respect of safety, legal, and regulatory risks.

Mr. 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, Mr. Van den Boogaard was required to return his company cell phone.

A short time later, Mr. Van den Boogaard brought an action against Vancouver Pile Driving for wrongful dismissal. By this time, Vancouver Pile Driving had reviewed the records on Mr. Van den Boogaard’s company cell phone and had located a series of text messages sent by Mr. Van den Boogaard, 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 Mr. Van den Boogaard’s wrongful dismissal action by alleging after-acquired just cause for termination.

Trial Decision

At trial, Mr. 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 Mr. 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 Mr. Van den Boogaard’s misconduct had undermined the safety of the job site 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 Mr. Van den Boogaard’s duties as a project manager responsible for safety matters at a high-risk job site. As his misconduct went to the heart of the employment relationship, Vancouver Pile Driving had just cause for the termination of his employment. 

Appeal Decision

Mr. Van den Boogaard appealed the trial judge’s decision to the British Columbia Court of Appeal. Among other arguments, he alleged that the trial judge had failed to properly consider the full context surrounding his misconduct.

The Court of Appeal dismissed Mr. Van den Boogaard’s arguments and upheld the decision of the trial judge. The Court of Appeal commented that Mr. 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.