Is it just cause if an employee admits to falsifying data? The
answer is - maybe. The ongoing debate about when employee
misconduct is severe enough to constitute just cause just became
more complex as a result of a recent Court decision.
In Fernandes v. Peel Educational & Tutorial Services
Limited c.o.b. Mississauga Private School 2014 ONSC 6506, the
Court ruled that a private school did not have just cause to
terminate a teacher who admitted to falsifying student’s
grades. In this case, Fernandes submitted student midterm marks in
2009 that were obviously inaccurate because he allotted grades for
student presentations that had not yet been completed. Fernandes
was asked to resubmit the grades twice. Both times, Fernandes
resubmitted the same grades and initially denied that the grades
were inaccurate. The school administrators met with Fernandes on
three separate occasions to review the grades. In the third
meeting, Fernandes admitted to falsifying the grades after which
the school terminated Fernandes’ employment.
In this case, somewhat unbelievably and despite the fact that the
Court ruled that Fernandes “[did] an incompetent job of
assessing his students, marking his students, and recording those
marks,” “gave incorrect marks,” “lied to
his employer,” and “admitted to falsifying marks on
students’ records,” the Court ruled that the school did
not have just cause. The Court found that prior to 2009, Fernandes
had been a “well-regarded” teacher of ten years.
Further, the Court was persuaded by the fact that the school
allowed the incorrect grades to be sent out to the students and
their parents while the school investigated Fernandes’
misconduct over a six-week period. This meant, in the Court’s
view, that the school did not view the incorrect grades as being
that serious. Lastly, the Court found that Fernandes admitting to
the misconduct, albeit late in the process, was a mitigating
factor. Taken together, the Court ruled that “the punishment
outweighs the seriousness of the infraction.” The Court
awarded Fernandes 12 months of pay in lieu of notice for wrongful
dismissal (approximately $52,000).
In addition to damages for wrongful dismissal, the school in this
case was also found liable for the value of Fernandes’ lost
long-term disability benefits. Because the school terminated
Fernandes for just cause, his benefit coverage was terminated
immediately. During what would have been the common law notice
period, Fernandes became disabled and unable to work, a fact
accepted by the Court based on expert evidence given at the trial.
The Court found that but for the termination for just cause,
Fernandes would have applied and qualified for long-term disability
benefits during the notice period. Consequently, the Court found
the school liable for long-term disability benefits to age 65.
Fernandes was 62 years old at the time, meaning the school was
liable for long-term disability benefits for a three-year period.
The Court did not rule on the specific amount of the benefits and
required further submissions from counsel on this point following
It seems incredible that admitted dishonesty (with obvious
implications to the school’s reputation) was not enough in
this case. The outcome here is a stark reminder that even with very
serious employee misconduct, just cause is never a “slam
dunk.” When faced with a decision about whether to terminate
for just cause, employers must remember that the Court views it
differently. The Court takes a “contextual approach,”
not a hard line. The Court will not view misconduct in isolation.
It will look at all relevant factors, including whether the
employee has a relatively unblemished record, how seriously the
employer treated the incident, the thoroughness of the
employer’s investigation, whether the employee had a fair
opportunity to explain his or her actions, and whether the employee
showed remorse. An employer should pre-emptively review any
decision about termination for just cause in the same manner,
including whether to terminate benefits.
It remains to be seen if this case will be appealed and if the
Court of Appeal views Fernandes’ misconduct in the same
light. The Cassels Brock team will keep an eye on the developments
in this case and updates will be reported in future elerts.
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guide to the subject matter. Specialist advice should be sought
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