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.

Employee Work Skeletons Can Harm Future Employment

| April 16th, 2015 | No Comments »

Employees-beware of your work skeletons! Social media can be a good source for many things, even handy for employers to uncover employee work skeletons. Potential job candidates and employees need to be cautious about what they post and make public. More and more, employers are relying on this information and employees should be aware on how and when employers can rely on this information.

Toronto Employment lawyer, Daniel Lublin is an expert in the employment law field. His cautions consist of the following:

For employees

  • Upon termination- employees are still subject to allegations of misconduct; and
  • If your skeletons are severe and you cannot risk exposure- do not challenge your employer’s decision. Some employment skeletons can be more harmful than beneficial to both your case and your career.

For employers

  • When employee skeletons come to light following termination, it can be reason for a ‘just cause’ termination. Employers should consult with a law expert to find out their rights.
  • When employee misconduct comes to light and factors of this action affect the severance agreement, employers may be entitled to cease further payments. However, this is determined through tests that only an experienced legal professional can detect.

Read Daniel Lublin’s Globe and Mail column and full article Your old job skeletons can come back to haunt you

Legal implications from 2014 workplace employment cases

| January 28th, 2015 | No Comments »

Big employment cases from 2014 drew a good amount of attention to workplace law. Specifically, it demonstrated the legal implications to employees and employers.  To date, we continue to see the consequences of these fallouts. Whether through poor judgment, ignorance of the law or quite simply wrongful conduct, Canadians and Americans have been at the forefront of workplace legal disputes. Some cases that have drawn media attention include the Jian Ghomeshi scandal regarding allegations of sexual harassment, Donald Sterling and his discriminatory comments, the two Liberal MP’s accused of harassment. The list goes on.

Toronto Employment Lawyer, Daniel Lublin discusses in his most recent Globe and Mail article five (5) key points to look out for regarding employment issues that arose in 2014, and will continue to have an impact in 2015. These include:

  1. The freedom of speech fallout;
  2. Behavior unbecoming;
  3. Probing Allegations;
  4. Boomers Beware; and
  5. Honesty is the best Policy.

To understand these key points in great detail, read Daniel Lublin’s Globe and Mail column and full article Fallout still spreading from big workplace cases

 

Publicly criticizing your employer – Is it considered misconduct?

| June 6th, 2014 | No Comments »

Nothing is more public than expressing your work frustrations and criticizing your employer on social media sites and the internet.  This is not the smartest idea considering the workplace consequences and the potential damage to your career.

As Daniel Lublin, Toronto Employer Lawyer explains in his latest Globe and Mail article, “An employee’s public comments about his employer can be considered misconduct where those statements are harmful to the employer’s interests or damaging to its business. One reason is that employers can be exposed to liability because of statements made by their employees”.

Employees can speak their mind privately or publicly as long as their comments don’t negatively affect their employer’s business.  It is always wise to consider how the employer will feel about the statement, the consequences and whether voicing your opinion is worth the trouble it may cause you.

To find out more on the topic from a legal perspective, read Daniel Lublin’s article in the Globe and Mail, Speaking your mind can hurt your career.

Failure to investigate alleged misconduct can be costly

| April 2nd, 2014 | 1 Comment »

It is not uncommon for employers to fire first and ask questions later, especially in instances of alleged employee misconduct. Stelcrete Industries Ltd., a rebar assembly plant in Welland, Ontario learned that impulsive actions can be costly.

Stelcrete Industries Ltd. chose to stay open on Family Day and told Ludchen, the plant supervisor, to post a written announcement of their substitute day off. An undercover investigator posing as a Stelcrete employee informed management that although she did not witness the occurrence she was told that the supervisor “freaked out,” threw a garbage can and then made a discriminatory remark about the ethnicity of the company’s owners when he was told to post the announcement. Satisfied that Ludchen was guilty of misconduct the company immediately fired him.

At a recent trial to determine whether the supervisor was wrongfully dismissed, Ontario Superior Court Justice Joseph Henderson ruled in favour of the former supervisor because Stelcrete was unable to connect the man’s alleged comments back to him. The undercover investigator’s testimony about what others told her was hearsay, and none of the other employees who testified corroborated the alleged remarks.

What Daniel Lublin, employment and labour lawyer at Whitten Lublin PC advises is that, “When dealing with alleged employee misconduct, the onus is squarely on the employer to prove that the punishment fits the crime.”

Without first investigating the situation, or at least confronting the employee with its accusations, Stelcrete was unable to provide the evidence required to convince the judge that the company acted correctly. As a result, the former supervisor was awarded his legal costs, 12 months’ pay and damages in lieu of his benefits and a bonus he ordinarily received.

In his Globe and Mail article, Don’t fire first and ask questions later Lublin summarizes Ludchen v. Stelcrete Industries Ltd., 2013, and offers employers advice on how to proceed with investigating allegations of misconduct before dismissing an employee.

Will you be getting severance or not?

| August 2nd, 2013 | No Comments »

When are employees entitled to severance and when are they not? This is one of the most common questions employees would like answered. In his latest video interview in the Globe and Mail, Daniel Lublin, Employment Lawyer has explained that if the employer wants to terminate an employee, it is in their discretion to do so.

 

“With Cause” or “Without Cause”?

Employers, when terminating an employee, must elect whether to end the relationship “with cause” (i.e., misconduct) or “without cause” (e.g. downsizing, restructuring, etc.) Mr. Lublin explains that when it comes to misconduct, the employee will not be entitled to any severance. The law in Ontario, and often the clauses of employment contracts, stipulates that misconduct in the workplace is ground for termination without severance. However, when terminated “without cause”, the employee is entitled to notice of termination or pay in lieu of that notice. This can be confusing to employers and employee alike, and there is always a “but”—which is why it is best to consult an expert who will help you determine what your entitlements are.

 

When will you not be getting severance?

As above, you will not get severance if you are terminated as the result of misconduct or serious misconduct. As opposed to misconduct alone, which entail poor performance or change in opinion of the employee generally, serious misconduct refers to specific actions such as theft, dishonesty, etc. Further, you will not get severance if you resign, no matter the length or merit of your service.

To know if you will be getting severance or not, consult an employment lawyer today.