Friday, October 29, 2010

Ontario Employment Law: More on "Wilful Misconduct" under the Employment Standards Act

In a previous post, we discussed Section 54 of the Employment Standard Act, which prohibits an employer from terminating employment without cause unless the employer provides written notice of termination or alternatively, pays specified wages in lieu of such notice.

We also noted, however, that section 55 permits of some exceptions to this rule, one of which is where the employee is engaged in "wilful misconduct" that is not condoned by the employer.

In it ruling in Applicant v. Faduma Abdi and Director of Employment Standards, the Ontario Labour Relations Board makes it plain that a finding that an employee is guilty of "wilful misconduct" requires a solid evidentiary foundation and will never be made lightly.

In Abdi, there was a verbal dispute between an employee, Ms. Abdi, and her immediate supervisor, Mr. McCaw, as to whether he had given her prior approval to alter her regular work schedule on a certain day.

The employer did not thoroughly investigate the matter. Rather, it presumed the employee (who had a long disciplinary record, which included a final warning in relation to attendance and scheduling matters) was guilty of deception and immediately terminated her. The Board found this unacceptable:
The company conducted no investigation after Mr. McCaw’s revelation to Ms. Fleury. No one asked for Ms. Abdi’s side of the story before the decision to terminate her was taken and communicated to her. She was not even afforded an opportunity to speak prior to being told by Ms. Lalonde that she was dismissed. The termination letter’s message to Ms. Abdi is clear: She was not entitled to termination pay (or any other compensation) because, despite all previous discipline, she consciously decided to alter her work schedule without approval. The company arrived at its conclusion of deliberate misconduct based solely on Mr. McCaw’s assertion that Ms. Abdi swiped her card at 7:30 a.m. Ms. Abdi testified unequivocally that Ms. McCaw had given her permission to commence her shift early on the day in question. Mr. McCaw chose not to testify as to whether he had given Ms. Abdi the authorization to reschedule her shift.

As such, the employer could not avoid its obligation to pay Ms. Abdi the termination pay to which she was entitled under the Employment Standards Act. A company must fully investigate allegations of misconduct where it intends to rely on those allegations as grounds wiful misconduct justifying termination without notice.

- Robert Tanha, Toronto
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