Texting may come back to haunt you

Use a company cell phone? What you text may come back to haunt you.

Our Court of Appeal recently held that an employer may dismiss an employee for cause (meaning without notice and payment of severance) where it discovers inappropriate text messages on the employee’s company cell phone after the employee is fired.

In Van den Boogaard v. Vancouver Pile Driving Ltd. 2014 BCCA 168, an employee was fired from his position as a project manager for a large marine general contractor, without cause. The former employer paid the employee four weeks’ base salary in lieu of notice. The employee sued for wrongful dismissal.

In preparing to defend the lawsuit, the company discovered the employee had sent text messages from his company cell phone whereby he solicited drugs from employees he formerly supervised. The employee admitted to soliciting drugs, although he claimed that he did so either outside of work hours or while on break from his employment duties.

Essentially, the Court of Appeal held that the employee’s conduct was incompatible with his role as a supervisor responsible for overseeing jobsite safety, delivering safety training, and enforcing drug prohibition policies. The employee’s conduct, although unknown to his employer at the time of his dismissal, was a “fundamental strike” at the heart of the employer-employee relationship such that the relationship was unsalvageable.

This decision serves as a reminder for (a) employees to be conscious of how they use electronic devices provided by their employers, and (b) employers to carefully examine such devices upon return for information which may retroactively justify employees’ dismissals.


Article written by Mark Danielson

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About the Author

Pushor Mitchell's Employment Group assists clients in meeting the challenges of today's workplace, including: hiring, firing, management, discipline, contracts, human rights, employment standards, privacy and many other related issues. In their column, the authors' provide practical and interesting information on employment law topics for both employers and employees.

The authors: Alfred Kempf, Greg Pratch, Joni Metherell, Keri Grenier, Mark Baron, and Mark Danielson.

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