Canadian HR Reporter

for termination EMPLOYMENT LAW Recent Ontario case shows what kind of evidence is needed for dismissal By Doug MacLeod G enerally, it's very diffi cult for an employer to prove it has just cause, meaning it is justifi ed in terminat- ing an employee without providing any notice of termination. But in a recent decision, Ontario's highest court found that a teacher's misconduct was serious enough to warrant a just cause termination. A deeper look at this case — Fernandes v. Peel Educational & Tutorial Services Limited — helps to illustrate the kind of evidence an employer must lead to prove a just cause dismissal. e facts From 1999 until 2009, when his employ- ment was terminated for just cause, Remy Fernandes was a teacher at a private school. e school was accredited by the Min- istry of Education to grant credits towards obtaining an Ontario Secondary School Diploma. To maintain its private school accreditation, the school had to follow the ministry's policies, including those con- cerning the assessment and evaluation of student progress and achievement. e school established guidelines for the assessment and evaluation of student achievement, based on the achievement levels set by the ministry. One of the school's policies stipulated that no zeroes or blanks could appear on a report card. e school required teachers to hand in their grades on time so they could be used to prepare student report cards. In March 2009, when teachers were re- quired to submit their grades for the April interim report cards to be prepared, Fer- nandes submitted his grades with numer- ous blanks and calculation errors. After a meeting was held with the school vice- principal, he promised he would resubmit the grades. When he did, the problems had not been fi xed, leading to a third submittal. e third time Fernandes submitted the grades, they were virtually perfect, making his supervisors suspicious. For example, one student had been given a perfect score despite having not complet- ed all of her work in the course. When con- fronted with the grades, Fernandes initially maintained they were accurate. However, when the vice-principal suggested the stu- dents be called in to talk about their grades, Fernandes started to cry, admitted he had falsifi ed his marks, and apologized. He was terminated soon afterwards. e court decisions e trial judge noted that Fernandes admit- ted his marks were late, that his calculations for student and class averages were incor- rect, and that he gave full marks to students who had not completed their assignments — knowing such a practice was against school policy. e trial judge found that the teacher did an incompetent job of assessing and marking his students, meaning "getting the job done." Nevertheless, the judge concluded the school had wrongfully dismissed the plain- tiff . Given Fernandes' long service with the school, the judge said his abrupt change in behaviour should have led the school to make more of an eff ort to assist him, rather than terminate his employment without proper notice. e school was ordered to pay one year's salary, lost long-term disability benefi ts and the teacher's legal costs. However, the Ontario Court of Appeal overturned the trial judge's decision and allowed the school's appeal. e test for just cause Whether an employer is justifi ed in dis- missing an employee on the grounds of misconduct requires an assessment of the context of the alleged misconduct. e test is whether the employee's misconduct gave rise to a breakdown in the employment relationship. e principle of proportionality underlies this approach: An eff ective balance must be struck between the severity of an employee's misconduct and the sanction imposed. To answer the question of whether mis- conduct is suffi ciently serious to strike at the heart of the employment relationship, the court must: determine the nature and extent of the misconduct, consider the surrounding circumstances, and decide whether dismissal was warranted. e appeal court considered each part of the test as follows: Determine the nature and extent of the misconduct: In this step, the court must determine the nature and extent of the misconduct and assess its seriousness. e appellate court noted that the trial judge failed to assess the seriousness of the plain- tiff 's multiple incidents of wrongdoing. e appellate court recognized that teachers occupy a special position of trust and have professional obligations to students and the school. Given that one of the most important professional obligations a teacher has is to fairly and properly evaluate student prog- ress, the plaintiff 's misconduct went be- yond negligence or misconduct. Failing to properly assign marks, falsifying students' grades, and repeatedly lying to his employer were intentional acts that constituted seri- ous misconduct. Consider the surrounding circum- stances: The courts must consider the particular circumstances of both the em- ployer and employee. With respect to an employee's circumstances, the court should consider factors such as age, employment history, seniority, role and responsibilities. In relation to the employer, the court should consider such things as the type of business or activity in which the employer is engaged, any relevant employer policies or practices, the employee's position within the organization and the degree of trust re- posed in the employee. e appellate court noted that although the trial judge took into consideration the teacher's age, employment history and lack of performance issues for the fi rst nine years of his employment, the trial judge failed to consider that he did not describe anything going on in his life that would aff ect his job performance. e appellate court also found that the trial judge's failure to consider the em- ployer's circumstances was an error in law. Given that the school was a private school whose accreditation came from the Minis- try of Education — which depended upon it complying with the requisite assessment and evaluation standards — the teacher's actions exposed the school to potentially serious harm. e court stressed that even though the school did not suff er harm, it is the severity of the potential harm that is considered in just cause. Decide whether dismissal was war- ranted: In this step, the court must con- sider the nature, extent and seriousness of the misconduct (step one above) in the context of the surrounding circumstances (step two above) to decide whether there was just cause for dismissal. e court concluded that despite the short duration of the misconduct (two months) in the context of the Fernandes' long 10-year service, the misconduct struck at the very heart of the employment relationship. Consequently, there was just cause for his dismissal. Lessons to be learned • Before terminating an employee for just cause, keep the three-step approach to as- sessing just cause in mind. e court sig- nalled that employers should be aware of any diffi culties an employee may have that could aff ect job performance. • Terminating an employee for just cause is a serious decision and should not be made lightly. If employers do not have just cause, they could face costly wrongful dismissal actions. • Some judges refer to an employee termi- nation as economic capital punishment. It is generally very diffi cult — but not im- possible — to prove just cause. Employers should therefore consult with an employ- ment lawyer before terminating an em- ployee for just cause. Doug MacLeod is the principal at MacLeod Law Firm in Toronto. He can be reached at (416) 317- 9894 or at doug@macleodlawfi rm.ca. FEATURES Credit: ProStockStudio (Shutterstock)

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