A Case of Employee Dishonesty Resulting in Termination

| 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.

Bullied employee-wanting to resign?

| October 30th, 2014 | No Comments »

Too often we hear about bullied employee who is mistreated to such an extent that he/she feels the only recourse is to resign.  However, a forced resignation does not necessarily mean that this is true.  When an employee works in an environment that is intolerable, what options are applicable?

Daniel Lublin, Toronto employment lawyer explains that a forced resignation is not a true resignation.  In fact, it can be classified as a dismissal. The onus falls on the employee to convince the judge that the work conditions and/or conduct were such that a reasonable person could not be expected to continue with employment.

To be informed further on this topic, read Daniel Lublin’s Globe and Mail column and full article I’m unionized, can I sue my employer or union?

 

It is hard to lose the game when you make the rules

| March 29th, 2011 | No Comments »

Privacy in the workplace continues to dominate the legal and policy discussions.

Most recently, Jerry Agar of CFRB 1010 and the Toronto Sun, addressed the issue in an editorial. Naturally, he sought the advice of employment lawyer, Daniel A. Lublin, prior to putting pen to paper. Commenting on the recent landmark decision, Mr. Lublin indicated it was a “seismic shift” in workplace privacy rights. Lublin encourages employers to create good information technology policies in the workplace. As he says; “It is hard to lose the game when you make the rules, so set good rules in place.

The dismissed employee’s handbook

| August 18th, 2010 | No Comments »

Four tips published in my Metro workplace law article from this week that should ensure an appropriate severance package, or more.

Always negotiate
Companies realize that most people will just take what they are offered, happy to get anything at all. So they deliberately offer less than they are ultimately prepared to pay. There is usually some flexibility in the figures – so ask for more.

Patience
Since the majority of lawsuits settle well before trial, the key for dismissed employees is to appreciate when they have great facts on their side — and also when they don’t. As the costs associated with litigation act as a deterrent for employees, employers understand that most will accept a reduced settlement at the outset rather than waiting for more. However, if you have a good case, you can expect that many of your legal costs will be recovered – so be patient or be prepared to take a discount.

Select your lawyer wisely
The guidance of experienced counsel is imperative to ensure your case is properly advanced and persuasively argued and that critical mistakes are avoided. A lawyer’s Google rankings have nothing do with his or her legal skill. Similarly, there are no rules limiting lawyers without much experience in employment law from professing that they practise it, on their websites and in the media — and they often do. Avoid legal practitioners who brandish promises of extraordinary results. In law as in life, if something is too good to be true, it is often is. Also avoid lawyers, or paralegals, who merely dabble in employment law, since they may not keep abreast of the recent developments — and worse, employers’ counsel often knows who they are.

Understand an employer’s apprehensions
They have skeletons in their closets as well. In one of my cases, we are arguing that an employer’s standard form employment contract is illegal. The cost to the company of paying this claim is irrelevant. If it loses, all of its contracts will be void.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues.

Common misconceptions about workplace rights

| August 11th, 2010 | 1 Comment »

In my workplace law column in this week’s Metro news, I discuss common misconceptions about workplace rights. Most employees cling to beliefs about workplace rights they gleaned from media, friends or researching on the Internet.  However, many of these “perceived” rights often do not exist.

For a short list of these misconceptions, see below.

Read More

Fired for being “too sexy” not a wrongful dismissal

| June 24th, 2010 | No Comments »

Reading last week’s headlines about the case of Debrahlee Lorenzana, the New York banker claiming she was fired because her good looks distracted her male colleagues, raised an alarm as to the public’s various misconceptions of critical issues in workplace law. Here are just a few of them.

In one article, the author claimed that Lorenzana’s wrongful dismissal case against her employer sparked a debate over “workplace sexual harassment.” Turning this case into an issue of sexual harassment could indeed be an interesting development in workplace law – except that it is wrong.

Is it discriminatory to rely on looks when firing an employee? In another article, the author suggested that if Lorenzana was treated differently because of her appearance, it could constitute discrimination under human rights laws. This would also be a major development in human rights law, except that it is also wrong.

In my  Metro news article from this week, I discuss this in further detail.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues. You can reach Daniel at dan@toronto-employmentlawyer.com. For even more on workplace law, follow him on Twitter at www.twitter.com/danlublin.

Dismissal during or after Maternity Leave

| May 31st, 2010 | No Comments »

There is a scam being run by employers across the country, and it is permitted by law.

Most employment law prohibit dismissal during or after maternity leave.  Yet it happens anyway.  This is because there are various “exceptions” in the legislation permitting dismissal where it is unrelated to the leave.

In Ontario, the Employment Standards Act, 2000 states:

53. (1) Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.

(2) Subsection (1) does not apply if the employment of the employee is ended solely for reasons unrelated to the leave.

What this essentially means is that where the employer has reasons to terminate an employee’s employment that are completely unrelated to the fact that the employee went on a pregnancy or parental leave reinstatement will not be required.

Although many employers try to fit employees within this exception, it is not meant to permit dismissal in cases that are not clearly unrelated to the leave.  The question usually asked is, but for the leave, would the employee have lost their job?

In my Metro news article from last week, I discuss this in further detail.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues.

Employment Law: Performance Plan’s may have to be accepted

| April 7th, 2010 | No Comments »

 

Sometimes employees too easily confuse who gets to call the legal shots.  Believing that their job is an entitlement, some workers try to take the law into their own hands. They are often mistaken. This is the tale of one employee who learned this lesson the hard way.

Working out of the Toronto-area offices of software developer VoiceGenie Technologies, Crinu Iliescu quickly wore out his welcome. Hired only 15 months earlier as a software QA manager, Iliescu swiftly lost the firm’s trust after his response to a manager’s email accusing him of underperformance. Iliescu wrote his boss, the HR manager and the president with five demands he required them to meet before he would return to work.

In Daniel Lublin’s weekly Metro Column, he discusses the case of Crinu Iliescu, who was viewed as “abandoning” his job after refusing to meet his employer’s requirements to improve his performance.   The full column can be read here and the case can be read here.

The case stands for the proposition that, while employees do retain certain rights, rejecting a reasonable performance improvement plan is usually a poor option. 

Even if such a plan is imposed in bad faith (which often does occur), protest the plan in writing and continue to work in the meantime. You retain the right to complain at a later time without jeopardizing your own continued employment.

Daniel A. Lublin is a partner at the employment law firm Whitten & Lublin LLP, who specializes in the law of dismissal.

Employee Bonuses – when they amount to a wrongful dismissal?

| March 10th, 2010 | No Comments »

Employees don’t always get the bonus they deserve, but seldom will this amount to a successful lawsuit.

Veteran investment banker Kenneth Mathieson was well rewarded in his good years. In 2005, he earned a bonus of $1.1 million. However, when his employer, Scotia Capital, decided that he deserved only $360,000 in 2006 — the lowest bonus he had ever received — Mathieson believed the bank was attempting to force his resignation. He wasn’t about to go quietly.

Mathieson complained to management, who listened to his concerns, but remained firm in their decision: his 2006 performance was not at par with his colleagues, which led to his low bonus award. Eventually, fed up with Mathieson’s protests, the bank fired him. Mathieson sued, claiming that his bonus had been reduced in bad faith, among a handful of other claims

To read the full article, visit Daniel Lublin’s columnist page at Metro News.

Daniel Lublin is an employment lawyer focusing on the law of dismissal.  He can be reached at dan@toronto-employmentlawyer.com

Escorts in the workplace may lead to employment claims

| November 12th, 2009 | Comments Off on Escorts in the workplace may lead to employment claims

A canadian woman working as a top executive at a London, England company is suing her boss for 8 million dollars in a UK Employment Tribunal for allegations that he brought prostitutes to meetings and repeatedly called her a "stupid blonde" before she was fired, as reported in a National Post article here

In Canada it is an implied term in every employment relationship that employees be treated with decency and civility, the breach of which can lead to damages for termination, commonly known as a "constructive dismissal."  An example of a constructive dismissal case can be read here.   

In addition, Canadian legislation prohibits discrimination or harassment based on grounds such as gender or race.  

Daniel Lublin is a lawyer with Whitten & Lublin which is an employment law firm in Toronto, Ontario assisting employees and employers with workplace legal matters.