New Professional Member Special>>> Save $15 and receive a SHRM tote bag
Many HR pros are surprised to learn that legal protection from retaliation isn’t always guaranteed for them.
Save $15 on a Professional Membership and Receive a FREE Tote Bag.
Get the HR education you need without travel expenses or time out of the office.
We don't just visit a city, we take it over. Join us in NOLA -- June 18 - 21, 2017.
The termination of a teacher who fabricated grades was upheld.
When is a single, serious instance of misconduct just cause for termination, particularly for a long-service employee? Canadian case law has set a very high standard for just cause. The applicable legal test, outlined by the Supreme Court of Canada in McKinley v BC Tel, requires courts to apply a contextual analysis to determine whether just cause exists. The court must consider the nature and severity of the misconduct in relation to the impact on the employment relationship. Just cause will be found where the misconduct led to an irreparable breakdown of the employment relationship. In this case, the Ontario Superior Court of Justice and then the Ontario Court of Appeal were asked to determine if a teacher's misconduct gave rise to just cause for termination. The courts came to very different conclusions.The plaintiff was a teacher employed by the defendant, a private school. The plaintiff had been employed for 10 years at the time of termination. Although there had been some performance issues, the plaintiff's discipline and performance history were not factors considered by either court in the assessment of just cause. Both courts treated the plaintiff's record as relatively unblemished for the purposes of that analysis.The plaintiff was dismissed as a result of the grades he submitted for his students' interim report cards. Importantly, these evaluations were relatively unofficial, as the only grades that would actually be entered on the students' records were ultimately the year-end grades. Nonetheless, in regards to the interim grades, the plaintiff knowingly entered fabricated grades. He claimed that he intended to correct the grades prior to the release of the final report cards at the end of the year. Other grades had also been entered late and incorrectly.When confronted by the school, the plaintiff initially lied about how the grades were determined, although he ultimately confessed to the misconduct. He was dismissed immediately for just cause.Interestingly, even though the school knew that the interim grades were inaccurate, they were released on the students' interim report cards. The school claimed it did not have sufficient time to re-evaluate and amend the grades prior to issuing the interim report cards.The trial judge for the Ontario Superior Court of Justice found that the misconduct was not sufficient to justify a summary dismissal.Specifically, the court found the fact that the school had knowingly sent out the flawed interim grades to students served to underscore that the misconduct was not serious. The court reasoned that if the school had believed that the effect of sending incorrect grades was severe, it would have delayed the delivery of the interim report cards.In addition, the court found that the misconduct, when considered in light of the plaintiff's positive record of employment, was not sufficient to warrant dismissal. The court found that in order for the dismissal to be justified, a formal warning would have needed to be issued, and additional misconduct would have needed to have occurred.The court awarded 12 months of notice and pay to the employee. In later decisions, the court awarded an additional $115,000 in disability benefits and $130,000 in court costs.The school appealed to the Ontario Court of Appeal. The Court of Appeal reversed the lower court's decision, determining that there was just cause for the dismissal of the plaintiff.The Court of Appeal was particularly concerned with the possible impact of the misconduct on the school. As an accredited private school, the defendant was subject to robust requirements insofar as the grading of students was concerned. A breach of those requirements would put the accreditation, and therefore the continued operation, of the school in jeopardy.The fact that no ill consequences resulted from the plaintiff's misconduct was not considered to be an important factor for the Court of Appeal. What was far more important was the magnitude of the potential harm to the employer, which was extreme. As a result, it weighed toward a finding of just cause.In addition, the Court of Appeal was struck by the fact that the plaintiff offered no explanation for the misconduct. Although given a number of opportunities to explain himself, the plaintiff could not explain why he committed the acts.The seriousness of the misconduct, combined with the lack of mitigation, struck at the heart of the employment relationship; the Court of Appeal concluded that the misconduct had made the employment relationship unsalvageable. As a result, there was just cause for dismissal.The court rescinded the trial judgment and vacated all of the amounts awarded to the employee.A dissenting justice upheld the trial court's findings, holding that the majority was impermissibly "re-trying" the case. However, the majority opinion stood and the case was dismissed. Fernandes v. Peel Educational & Tutorial Services Limited (Mississauga Private School), Ontario Ct. App., 2016 ONCA 468 (June 14, 2016).Professional Pointer: The determination of whether just cause exists for termination in Canada is a nuanced analysis that often resembles an art more than science. However, this case should be comforting to employers for two reasons. First, where an employee engages in misconduct and dishonesty, the wrongdoing is compounded where no reason or explanation is offered by the employee. Second, the employer's circumstances were critical in the determination of whether just cause existed. The risk in this case to the accreditation of the school was a critical factor in determining the severity of the misconduct. Frank B. Portman is a lawyer with the firm of Stringer LLP, the Worklaw® Network member in Toronto.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Your session has expired. Please log in again before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
CA Resources at Your Fingertips
SHRM’s HR Vendor Directory contains over 3,200 companies