Under the Employment Standards Act, 2000, an employee
who has been guilty of wilful misconduct, disobedience or wilful
neglect of duty that is not trivial and has not been condoned by
the employer is not entitled to notice of termination or
In Hallmark Housing Services Inc., 2013 Can LII 14638,
the Ontario Labour Relations Board considered when an employee
would lose their right to notice of termination and explained how
an employer could show that an employee's conduct was so bad
that it met this stringent test.
The case involved an employer's application for review of an
order to pay $1,166.88 in termination pay. At the hearing,
the employer argued that the employee had engaged in wilful conduct
within the meaning of the Act by performing his duties
poorly, being habitually late, and demonstrating a lack of effort
in the performance of his work. The Board also heard evidence
that the employer had met with the employee on several occasions
and that the employee had been issued a number of Progressive
Discipline Notes with respect to his behaviour. The Board
stated that to deny an employee termination pay, the employer has
the burden to prove (on a balance of probabilities) that the
employee engaged in behaviour that constitutes wilful misconduct,
disobedience, or wilful neglect of duty that was not trivial and
not condoned by the employer.
In considering this issue, the Board applied principles from
VME Equipment of Canada Ltd. (Re),  O.E.S.A.D. No.
230, noting that there are two general categories of serious
misconduct. The first category is comprised of single acts
including insubordination, theft, dishonesty, and physical violence
against other employees. These single acts, may on their own, meet
the requisite standard of seriousness.
The second category of acts is comprised of less serious,
repetitive forms of misconduct. Repetitive forms of
misconduct will only meet the required standard of seriousness if
the employer has explained after each occurrence that the conduct
was not acceptable and that if continued would result in
termination and despite these warnings there is a culminating
In addition to proving that the misconduct is serious, the
employer must show that the conduct complained of is
'wilful'. Careless, thoughtless, heedless, or inadvertent
conduct will not meet the standard. The employee must have been
"bad in purpose." In Hallmark, the Board
held that the employee had engaged in a pattern of wilful
misconduct, disobedience and wilful neglect of duty that was not
trivial and was not condoned by the employer. It appears that
a key factor in this case was the discipline record kept by the
employer showing repeated warnings that dismissal would occur if
the behaviour continued.
The Hallmark decision provides a clear and current
articulation of the principles applicable to the wilful misconduct
exception under the Act. It should be considered by
employers who are contemplating terminating their employees without
payment for a notice period and should be read in supplement to the
Board's earlier decision Wal-Mart Canada Corp v. Gray,
2002 CanLII 31452.
From Hallmark, it is clear that an employee who has
been warned would want to show at a hearing that she or he showed a
desire to change such that it was not intentional repetition of
misconduct and an employer should keep good records of repetitive
warnings including that further repetition will lead to
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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