Supervisor who solicited and procured drugs from employee was fired for cause

The B.C. Court of Appeal has upheld the for-cause termination of a supervisor who used text messages to solicit and obtain drugs from an employee under his supervision.  Safety was one of the supervisor’s responsibilities in an industry described as “high risk” and “safety-sensitive”.

The supervisor was a project manager of a pile driving company.  The company fired the supervisor, alleging that he had misused a company gas credit card and a B.C. Ferries card, as well as failed to pay for a hotel bill.   After the termination, when the supervisor returned his company cell phone, the company found text messages from him soliciting drugs from an employee under his supervision.  The primary drugs were Dexedrine and clonazepam, both prescription medications which are “listed substances” under the federal Controlled Drugs and Substances Act. The company relied on the text messages as “after-acquired cause” for dismissal.

The supervisor sued in court for wrongful dismissal. In written argument, he agreed that he had a senior and important role, that safety was a very important function at the company, and that he supervised safety.  He agreed that it was his role to set an example.  He admitted the possibility that he consumed illegal drugs with the employee.

The trial judge stated that it did not matter whether the supervisor’s solicitation happened at work or offsite.  Also, it did not matter that, as the supervisor alleged, others in the company smoked marijuana at a company party.  The trial judge decided that the company had just cause to fire the supervisor.

The B.C. Court of Appeal agreed, stating:

“Vancouver Pile Driving defended Mr. Van den Boogaard’s dismissal, alleging after-acquired cause. Mr. Van den Boogaard admitted he engaged in criminal conduct with a person over whom he had direct supervisory authority, including the ability to hire or fire. He had a high level of responsibility as a project manager on a worksite in one of the highest accident risk industries. He was responsible for site safety and effective execution of all projects under his control. He worked without supervision. He was responsible for the implementation of drug policies. He was expected to supervise his drug dealer in a safety sensitive workplace. He exhibited lack of judgment. As the trial judge found, ‘asking an employee under his supervision to procure illegal drugs is misconduct that goes to the root of the employment relation’. The employment relationship could not be restored in the circumstances.”

As this case illustrates, employers – particularly those in safety-sensitive industries – are entitled to hold their supervisors to high standards of safety. 

Van den Boogaard v. Vancouver Pile Driving Ltd., 2014 BCCA 168 (CanLII); trial decision available here.

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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