A recent Ontario case dealt with an employee’s misconduct that clearly amounted to just cause for termination. The employee breached many company rules and pursuant to the progressive discipline policy, the employee should have been terminated. However, the employee was still entitled to receive termination and severance pay based on his 17.5 years of employment.
Why?
Because his misconduct did not constitute “wilful misconduct, disobedience or wilful neglect of duty” pursuant to Ontario Regulation 288/01.
Subsection 2(1)(3) of Ontario Regulation 288/01 lists employees who are not entitled to notice of termination (or termination pay in lieu of) under the Employment Standards Act. Included on the list are employees who have been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.
Likewise, subsection 9(1)(6) of the Regulation lists employees who are not entitled to severance pay under the Act, including those who have been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.
In this case, since the employee’s misconduct was clearly unintentional carelessness, attitude problems and that he did not take the consequences of his actions very seriously when he breached company rules, it was not wilful and did not disallow termination notice or pay. That is why the Ontario Superior Court of Justice found that the employee was entitled to termination and severance pay.
So what does this mean for employers? Make sure if you are trying to claim that an employee is exempt from receiving termination and severance pay under Ontario Regulation 288/01 for wilful misconduct, you must show that the misconduct was intentional and reckless, not just careless.
Christina Catenacci
First Reference Human Resources and Compliance Editor
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Thank you Christina for your words of wisdom. In most cases, whether civil or criminal, “intent” is a major factor that should never be ignored. This person still lost his job, but without malicious intent he was still due termination and severence pay. Let’s see how the Charlie Sheen case plays out!
Hi Jeff,
I completely understand where you are coming from. I can see how it would be quite frustrating for employers who spend the time creating company policies and training employees about the policies, and then having to watch employees act contrary to the policies.
I especially sympathize with this employer because it used a series of disciplinary acts pursuant to its progressive discipline policy, including counseling the employee, but still, the employee was entitled to termination notice after breaking numerous company policies.
Thanks,
Christina
I think employees need to learn their place. It is the role of HR professionals to make sure employees comply with the policies that we set henceforth