Vey Willetts lawyer Paul Willetts was quoted in the May 3, 2022 edition of Canadian HR Reporter in an article entitled "Fired for cause, worker still gets termination pay". The article considers a recent decision from the Court of Appeal for Ontario. In which, the court determined that an employee who slapped a female co-worker’s buttocks had breached the trust necessary for ongoing employment, however, his actions could not be characterized as “wilful misconduct” under the Employment Standards Act, 2000. As a result, the employer had cause to dismiss the individual but was still required to issue minimum statutory entitlements upon termination.
This is the first decision in Ontario (of which we are aware) where the court found that an employer had cause to terminate while failing to meet the statutory threshold of “wilful misconduct.” The court also offered guidance for employers seeking to prove wilful misconduct. Specifically, the court opined that to meet this requirement, an employer must show the employee’s actions were both deliberate and preplanned. This a high threshold to meet.
In speaking with Canadian HR Reporter about this requirement, Willetts noted:
“The idea that it was deliberately wilful, that is unsurprising, but this new requirement that it has to be preplanned, I think, creates difficulties for employers, and sets an even higher bar in terms of meeting the requirement…I think it is fair to say [that] may require you to get into the person’s head, effectively, to demonstrate that they had prior intent to commit an act…it’s a very difficult standard to meet.”
Employers that are dealing with bad actors in the workplace, and perhaps considering dismissing for wilful misconduct, should proceed cautiously and seek advice from an employment lawyer to avoid inadvertently accruing liability.
Vey Willetts LLP is an Ottawa-based employment and labour law firm that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.