In this case, a teacher who had been employed by what is known
as the Mississauga Private School for over ten years was terminated
for cause on April 17, 2009.
The evidence indicated that until the spring of 2008 he had been
a good and dedicated teacher. Differences began to appear between
him and his superiors towards the end of the 2007/2008 year.
By the date of his termination, the school was of the view that
the teacher was sloppy and inconsistent in his record keeping and
calculations which impacted student marks, he was contravening
school policy by attributing a mark of zero for any missed
assignments, he had allowed distorted marks to appear on report
cards, he had fabricated marks on a number of occasions by entering
marks for assignments that he had not marked, and entering marks
before the work had been done or submitted by the students, and he
had failed to mark or return assignments. In the school's view,
this was tantamount to academic fraud. This conclusion led to a
decision to terminate the teacher's employment for cause.
The teacher sued for wrongful dismissal. The trial took place
over ten days.
During the course of trial, the teacher admitted a number of
these transgressions including his violation of school policy by
giving full marks to students who had not completed their
assignments. He admitted giving students a zero mark in breach of
the school policy that no student can get a zero for anything other
than plagiarism (interestingly the judge expressed the opinion that
this policy seemed astonishing to him). Astonishing or not,
this was a rule of the school and the teacher was aware of it and
decided not to follow it.
The court made a number of findings damaging to the
teacher's case. The court found that he gave incorrect marks,
marks that he did give were late, he allowed students to submit
overdue assignments, and even though he was the computer teacher,
his own computer program did not provide accurate marks. The
court found that when he met with his superiors immediately prior
to his dismissal, he lied to them about how marks were
calculated. He then was found to have lied to the court about
how student presentations were marked. The court found that he
had admitted to falsifying marks on the student records.
The court reviewed the law relating to dishonesty as a basis for
termination. The court observed that as indicated by the Supreme
Court of Canada, in dealing with the topic of dishonesty, a
contextual approach is required rather than a hard line.
According to the Supreme Court of Canada, just cause for dismissal
exists where the dishonesty violates an essential condition of the
employment contract, breaches the faith inherent to the work
relationship, or is fundamentally or directly inconsistent with the
employee's obligations to the employer.
Accordingly, it is not true that dishonest conduct always
amounts to cause for dismissal notwithstanding the surrounding
circumstances. Underlying this approach is the principle of
proportionality. In other words, there has to be a balance
struck between the severity of the misconduct and the sanction
In this case, the court found that notwithstanding all of the
transgressions proven at trial, immediate termination was not the
appropriate sanction for the teacher's misconduct. The court
found that the school could have provided a reprimand and a warning
that if such conduct was repeated, it would lead to
termination. The fact that the teacher's professional
behavior had changed so abruptly after years of satisfactory
service should have led the school to make more of an effort and
inquiry to assist the teacher rather than to terminate his
employment without notice. At the end of the day, the court
found that the punishment outweighed the seriousness of the
This is another useful reminder of how far the pendulum has
swung in employment cases. Employers simply have to take every
possible step to analyze and assess every aspect of an
employee's behavior before making a decision to terminate
without notice. Short of outright fraud on an employer
resulting in personal financial gain to the employee, or repeated
transgressions in the face of a series of warnings, cases in which
just cause will be found appear to be entering the realm of an
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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