A Case of Employee Dishonesty Resulting in Termination

| Tuesday, April 4th, 2017 | No Comments »

Where there is ‘just cause’ for termination an employer is not obligated provide an employee notice of termination or pay in lieu.  ‘Just cause’ means that the employee has done something wrong that deserves termination as a disciplinary measure. This can either be one act that strikes a fundamental aspect of the employment relation or a final step in the progressive disciplinary process. Overall, the punishment must be proportional to the misconduct of the employee. For a single act to trigger a just cause termination, it must be fundamentally incompatible with the duties of employment or significantly breach the employer’s trust of an employee. There are two aspects that must be considered when determining whether termination is warranted (i.e. proportionate to the employee’s misconduct). This includes the nature and extent of the misconduct, and the surrounding circumstances.

Fernandes v. Peel Educational and Tutorial Services Limited:

Fernandes v. Peel Educational and Tutorial Services Limited (Peel Educational Ltd.) is a case which deals with employee dishonesty and termination. Fernandes was a teacher of 10 years (1999 – 2009) with a good employment record. Fernandes was also involved with extracurricular activities, including coaching and after-school events. In the 2008 – 2009 school year, Mr. Fernandes was found to have falsified various grades for the students in his classes. This was an attempt to meet the deadline for report cards, for which he had been given 3 extensions. After an investigation and 3 meetings, the school terminated Mr. Fernandes’ employment without notice or severance, calling this a case of ‘academic fraud’. Upon analysis, the Ontario Court of Appeals ruled that there was just cause for termination. In reviewing Mr. Fernandes’ misconduct of dishonesty, the court considered the nature and extend of the misconduct, and the surrounding circumstances.

  1. The nature and extent of the misconduct:

The court considered the fact that Mr. Fernandes assigned inaccurate and false grades for his students’ assignments, both initially and upon resubmission, and that Mr. Fernandes released these grades for the students’ interim report-cards. Further, Mr. Fernandes lying to the employer in an attempt to cover-up his actions was also considered in assessing the seriousness of this misconduct. The key here is to understand the seriousness of this misconduct as it related to his employment relation. Teachers hold the trust of the school, the students and the students’ parents to fairly evaluate the students’ progress and development. The dishonesty of this misconduct, therefore, was fundamentally incompatible with the duties required by a teacher, causing irreparable harm to the trust placed in Mr. Fernandes by all parties.

  1. The surrounding circumstances:

The courts consider both the employer and employee’s surrounding circumstances when further evaluating whether just cause is warranted. In this case, it is important to understand the harm that Mr. Fernandes’ misconduct could have done to the school as a business. Being a private school, Peel Educational Ltd.’s authority to grant credits and Ontario Secondary School Diplomas is dependent upon meeting the standards in place by the Ministry of Education. The severity of harm which could have resulted by Mr. Fernandes’ misconduct placed the school’s business in jeopardy. Further, Mr. Fernandes’ actions also violated his employment contract to fairly evaluate his students and the school’s trust in his professionalism, making continued employment a significant issue.

The court also considered Mr. Fernandes’ past behaviour, as he was employed with the school for 10 years with no prior performance issues. However, Mr. Fernandes did not have any explanation for his misconduct. He did face a deadline to submit his grades which was extended 3 times. However, Mr. Fernandes stated to his superiors that there were no life troubles that were preventing or hindering his teaching duties.

Was dismissal warranted?

In consideration of the above, it was determined that the seriousness of Mr. Fernandes’ misconduct did warrant just cause for dismissal and thus no severance package or notice was required. Mr. Fernandes’ actions displayed a complete disregard for his professional duties as a teacher, which were incompatible with the essential nature of the job. Given the harm done to the employment relation, the court agreed with the disciplinary action of the school.

If you are an employer and are faced with serious misconduct by an employee, it is important to be mindful of how the misconduct affects the employment relationship when considering termination without notice or severance pay. It is always advisable to seek the opinion of an employment lawyer to avoid unnecessary and costly future litigation. Each case presents its own unique set of issues, so a thorough assessment of whether just cause is warranted should be conducted.

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