Dismissal for Cause

Employment Standards Act, 2000

No termination without notice 54 No employer shall terminate the employment of an employee who has been continuously employed for three months or more unless the employer,

(a) has given to the employee written notice of termination in accordance with section 57 or 58 and the notice has expired; or

(b) has complied with section 61. 2000, c. 41, s. 54.

James Caldwell v Noble Corporation, 2018 CanLII 44825 (ON LRB)

11. The second matter for determination, is whether the Applicant is disentitled to termination and severance pay otherwise payable by reason of “wilful misconduct” on his part. Ontario Regulation 288/01 stipulates at section 2(1):

2(1) The following employees are prescribed for the purposes of section 55 of the Act as employees who are not entitled to notice of termination or termination pay under Part XV of the Act:

…

3. An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.

At section 9(1), O.Reg 288/01 stipulates:

9(1) The following employees are prescribed for the purposes of subsection 64(3) of the Act as employees who are not entitled to severance pay under section 64 of the Act:

…

6. An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.

12. The concept of “wilful misconduct, disobedience or wilful neglect of duty” is a term of art distinguishable from that of “just cause” in the wrongful dismissal cases or in the arbitral jurisprudence under a collective agreement. A much-cited articulation of its meaning is that found in VME Equipment of Canada Ltd. (Re), [1992] OESAD No 230 (QL) where the Referee wrote:

There are two general categories of serious misconduct. There will be single acts: insubordination, theft and dishonesty, and physical violence against other employees, for instance, which may, standing on their own, meet that standard of seriousness. As well, there will be less serious repetitive forms of misconduct, which if handled properly by the employer, will also meet this standard of seriousness. The employer, in this scenario, must have explained to the employee after each occurrence that the conduct in question was not acceptable and that if continued would result in termination and there must be, subsequent to these warnings, a culminating incident.

In addition to proving that the misconduct is serious, the employer must demonstrate, and this is the aspect of the standard which distinguishes it from 'just cause', that the conduct complained of is 'wilful'. Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. Rather, the employer must show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. It is, to put it colloquially, being bad on purpose.