Sunday, October 24, 2010

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

Section 54 of the Ontario Employment Standards Act requires that an employer who terminates the employment of a non-probationary employee without cause must give the employee written notice of termination or, alternatively, pay specified wages in lieu of such notice.

Section 55 permits certain exceptions to that obligation, exceptions which are fully enumerated in Regulation 288/01 of the Employment Standards Act.

We will consider one: where an employee who is guilty of "wilful misconduct" that has not been condoned by the employer.

In Walmart Canada Corporation v. Glenford Gray and Ministry of Labour, the Ontario Labour Relations Board stated that in order for misconduct to rise to the level of "wilful misconduct" as defined in the Employment Standards Act the employee's conduct must be deliberate and completely egregious as opposed to careless, thoughless, or heedless, a high standard indeed.

In so holding, the Board relied on and agreed with the decision in VME Equipment of Canada Ltd. [1992] OESAD No. 230, where the following is stated:
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 Walmart Canada Corporation, the second category of "serious misconduct", described in the passage above, was at issue, that is, a "repetitive form of misconduct". A Walmart employee, Mr. Gray, had failed to attend at work on three occasions and had given no or inadequate notice on certain occasions. This conduct must be viewed in light of the fact that Mr. Gray had had the importance of attendance and the consequences for failing to report to work brought home to him on more than one occasion.

Still, the board went on to find that the required standard was not met and therefore Walmart obliged to pay Mr. Gray two-weeks termination pay in accordance with the Employment Standards Act:

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.

- Robert Tanha, Toronto

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