After-Acquired Cause: When “Without Cause” turns into “With Cause”
In February 2013, Kirk was terminated from his job.
After a two-year stint as a health and safety manager at a shipbuilding company in Vancouver, Kirk was fired without cause. He received four weeks’ pay and no notice. He was very unsatisfied with the result and decided to pursue legal action for wrongful dismissal.
At the time of firing Kirk, his employers did not have cause. But when he returned his company cellphone following his termination, management found a series of text messages.
Unbeknownst to them, Kirk had been texting his coworkers during work hours in attempt to acquire illegal drugs to resell them.
It was not a good look for Kirk.
When the employees were met with Kirk’s legal action, they provided this illegal activity as justification for their decision. How did that turn out for Kirk? Were the employers successful in defending their decision to fire him?
A Cause is A Cause (In Certain Situations)
The fact that Kirk’s illegal activity surfaced after he was fired without cause did not stop the court from considering his in-employment actions after his termination The BC Court of Appeal accepted Kirk’s drug-seeking as cause for dismissal and his employers were successful in their appeal (Van den Boogaard v. Vancouver Pile Driving Ltd., 2014).
Because the action that provided cause occurred before the firing took place – regardless of the fact that the employer became aware of it afterwards – it still constituted as cause for dismissal. Of note, this after-acquired cause holds because the employers did not know about it before, and they did not explicitly nor through actions indicate that they tolerated the activity.
That is, if Brad’s supervisor had known he was asking co-workers for drugs using the company phone on work time and had not reprimanded him, then fired him without cause, and then invoked the after-acquired cause for dismissal; the result probably wouldn’t have been in the employer’s favour. In other words, just because you were terminated without cause, if it becomes apparent after the fact that there was in fact cause for termination, the “without cause” termination may turn into a “with cause” termination.
The 1961 Supreme Court of Canada ruling in Lake Ontario Portland Cement Co. v. Groner stated the following:
The fact that the appellant did not know of the respondent’s dishonest conduct at the time when he was dismissed, and that it was first pleaded by way of an amendment to its defence at the trial does not, in my opinion, detract from its validity as a ground for dispensing with his services. […]
This precedent-setting case was quoted in Kirk’s case. And the Court at Kirk’s trial continued:
Regardless of whether dismissal for after-acquired cause or for cause is being argued, the issue is whether the employer can establish that, at the time of dismissal, there were facts sufficient in law to warrant a dismissal. If an employer knew of the misconduct and had expressly or implicitly condoned it, then claims of after-acquired cause will be defeated.
This area of the law is not meant to put employees at a disadvantage. Employees fired without cause or without pay/notice shouldn’t be afraid to pursue legal action, and employers who wrongfully dismiss employees need to present a pretty compelling after-acquired cause.
As stated in Doucet and Dauphinee v. Spielo Manufaturing Incorporated and Manship (2011), “the law should not encourage employers to take on the role of employment archaeologists, looking through the remnants of an employee’s work history in the hope of unearthing grounds for dismissal where none was thought to exist”. If an employee is fired, it should be done with cause or with appropriate pay/notice; and employers should not invoke an after-acquired cause in bad faith.
Most importantly, if you are worried that this may apply to you, you should speak with an employment lawyer.
Does this apply to you? Call us to find out!
There are some specific situations where an after-acquired cause for dismissal may not stand. For example, some unionized environments have collective agreements that limit the right of an employer to invoke grounds for dismissal that are not mentioned in the notice of dismissal.
As well, if an employee rightfully pursues wrongful dismissal damages, the employer may retaliate with an after-acquired case to try to damage the employee’s integrity, professional reputation, and – essentially – bully them out of dropping the litigation.
If you find yourself in a situation where you are dealing with an after-acquired cause for dismissal, our experienced lawyers can help. A Zacharias and Vickers employment lawyer can assess your situation and let you know what your next move should be. Give us a call at 604-392-8644 or email at email@example.com.