Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Canadian Employment Law Today | 11 More Cases which she continued to live during the sum- mer — and eventually moved into a mobile home on JSCN land. She also was a member of the JSCN pension plan and was allowed to carry over unused sick leave. In 2014, JSCN lost some funding for the special education program — in which Latoski had taught for the previous 10 years — and was faced with a budget deficit. JSCN decided to not renew the contracts of three senior teachers, including Latoski. In May 2014, JSCN advised Latoski her contract wouldn't be renewed and her last day of work would be the end of her current contract — June 27. Latoski requested sever- ance pay equaling two days of regular wages for each of her 27 years of employment, but JSCN argued she wasn't entitled to sever- ance pay as she was a fixed-term employee whose contract was ending. Latoski filed a complaint under the Can- ada Labour Code, claiming she had con- tinuous employment and was a permanent employee. An inspector investigated and de- termined Latoski was a fixed-term employee whose contract had ended and she wasn't entitled to notice of dismissal or severance pay. Latoski appealed, arguing that the JSCN's personnel and policy manual had a clause stipulating that educational program employees with more than five consecutive years "shall be offered an indefinite contract in their sixth academic year." e adjudicator noted that Latoski had never specifically been offered indefinite employment as described by the manual. Other provisions in the manual were also not strictly followed, such as that employ- ees were supposed to give written notice by April 1 each year regarding their desire to continue employment — instead, JSCN usu- ally started things by making an offer. e adjudicator found that Latoski's con- tracts didn't provide for automatic renewal. However, over 27 years, the process was mostly treated as automatic by both Latoski and JSCN. A couple of years this didn't even happen and Latoski continued her employ- ment the following school year. is was inconsistent with JSCN's insistence that it could only employee teachers on a year-to- year basis, said the adjudicator. "Had the fixed-term nature of the con- tracts been of such importance to JSCN, one would expect that more attention would have been paid to presenting, signing, and retaining the contracts," the adjudicator said. "e relaxed approach taken by the parties tends to support my conclusion that the contracts were more of a formality than a necessity." e adjudicator also pointed out that JSCN providing a pension and benefits, along with allowing Latoski to live year- round on JSCN land, was more consistent with a permanent employment relationship. e adjudicator found that the reality of the contractual relationship was that Latoski was an indefinite-term employee who was entitled to severance. While in theory her contracts were fixed-term, the cumulative effect of 27 consecutive years of employ- ment along with the other factors made the employment relationship more permanent. e inspector's decision was overturned and JSCN was ordered to pay Latoski two days' wages for each year of her employ- ment as required under the code — a total of $9,838.24. See Latoski and James Smith Cree Nation, Re, 2016 CarswellNat 5276 (Can. La- bour Code Adj.). Indefinite term « from 27 on page 1 Termination for cause is very much alive BY RONALD MINKEN IT can be very difficult for employers to jus- tify a termination for cause, especially when the courts apply a contextual approach which often results in a finding that a lesser response short of termination is appropri- ate in the circumstances. However, as dem- onstrated in the Ontario Court of Appeal's decision in Fernandes v. Peel Educational & Tutorial Services Ltd., despite there not being a history of misconduct, the serious- ness of an employee's actions can justify a termination for cause. e employee, Remy Fernandes, was em- ployed as a teacher with Mississauga Private School for approximately 10 years when his employment was terminated with cause. Specifically, the school found that Fernandes had engaged in misconduct which included submitting incorrect marks for his students, delivering the incorrect marks late, using a computer program that did not provide ac- curate marks, initially lied to his employer with respect to how the students' marks were calculated, and falsifying students' marks. As a result of his termination for cause, Fernandes initiated legal proceedings seek- ing, among other things, his common law notice entitlements. After considering the misconduct which Fernandes engaged in, the Ontario Superior Court of Justice found that the school was not justified in terminating Fernandes' em- ployment for cause and awarded damages including 12 months' notice. Mississauga Private School appealed the decision to the Ontario Court of Appeal. e Ontario Court of Appeal overturned the lower court's decision and determined that Mississauga Private School was justi- fied in terminating Fernandes' employment for cause. Specifically, the appeal court stated: "(Fernandes') misconduct went far beyond mere negligence or incompetence. Failing to properly assign marks and evaluate student progress; falsifying students' grades; repeat- edly lying to his employer — these intentional acts constitute serious misconduct." Lessons for employers e above decision demonstrates the dif- ficulty an employer can have in justifying a termination for cause. Employers should be aware that the context surrounding the termination for cause is considered by the court, and such considerations can result in a finding of termination for cause despite there not being a history of misconduct by the employee. See Fernandes v. Peel Educa- tional & Tutorial Services Ltd., 2016 Car- swellOnt 9377 (Ont. C.A.). ABOUT THE AUTHOR RONALD S. MINKEN Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique in Markham, Ont. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder, Kyle Burgis and Gillian Fahy for their assistance in preparation of this article.

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