Much has been written on the meaning of the words ‘wilful misconduct’. It seems to me, however, that that authority can be summarized briefly. In the first place, serious misconduct has to be proven. That is conduct that seriously interferes with either the performance of the employee’s job duties or that of his or her co-workers. Normally the Employer would have to demonstrate that harm has been done to its operation and that the misconduct amounted to a repudiation by the employee of the employment contract. 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 this case, Mr. Gray’s conduct has been indeed careless, thoughtless or heedless. I have found that he made no, or insufficient, attempts to notify his supervisor of certain absences. The fact that he may have had difficulty in communicating with a supervisor in the past may have led to perfunctory attempts to call in late 1999 and 2000. I cannot conclude, on the basis of the three occasions on which Mr. Gray was unable, due to illness or family emergencies, to attend at work, where he failed to notify his employer or to make sufficient attempts to call in to give notice of his absence, that Mr. Gray was guilty of the kind of wilful misconduct identified in section 57(10). Wal-Mart decided to discharge him on that basis. The Act does not prevent Wal-Mart from doing so. Was Mr. Gray’s behaviour so egregious that Wal-Mart could not be expected to permit him to work another two weeks before his termination? I find it was not. After all, it was not Mr. Gray’s behaviour while at work which caused Wal-Mart to discharge him.
The board reasoned that if its finding in this regard made Mr. Gray's continued presence for two more weeks untenable in workplace, the employer had the option of paying him two weeks' wages in lieu of notice:
If an employer finds that its action of discharging the employee renders the continued presence of the employee in the workplace inappropriate, it has the option of paying two weeks’ salary in lieu of notice. However, section 57(10) deals only with the employee’s conduct, not the situation which results from the employer’s reaction to it. Here there was nothing in Mr. Gray’s conduct to make his presence in the workplace for another two week’s untenable.
This decision makes it plain that an employer will not be able to easily shirk its responsibility of giving notice or pay in lieu thereof in accordance with section 54 of the Employment Standards Act by alleging that the employee is guilty of "wilful misconduct" unless the conduct at issue seriously interferes with either the performance of the employee's job duties or that of his or her co-workers.