Yes, say lawyers, but it’s not recommended: 'You're making a decision without a full view of all the facts'
A recent Ontario Labour Relations Board (OLRB) decision reaffirmed that employees being terminated for wilful misconduct are not entitled to take part in the investigation into their actions.
The board found that a long-time employee at a Hamilton, Ont. steel mill intentionally shut off critical water pumps during his shift, disrupting production and causing $50,000 in lost production time and other damages. The employee was terminated for his actions, which the employer determined to be sabotage.
The mill, Max Aicher (North America) Limited (MANA), was ordered by an employment standards officer (ESO) to pay the employee termination and severance pay, alleging that he was denied procedural fairness during the investigation — namely, that he wasn’t interviewed and thereby was not able to defend himself or state his case.
In this decision, the OLRB vacated that decision and ordered the damages be repaid to the employer by the director of employment standards.
Statutory vs common law just cause termination standards
A key distinction between statutory and common law termination standards is the role of wilfulness; under common law, an employer can terminate an employee for just cause even if the employee’s actions were not deliberate, therefore a broader range of behaviours can justify termination.
Paul Boshyk, employment lawyer with McMillan in Toronto, explains this difference, stating, "To get to common law cause, the employee doesn't have to have engaged in purposeful behaviour... It could be something that occurred in the heat of the moment, it could be something that was careless."
However, statutory provisions under Ontario’s Employment Standards Act (ESA) state the employee’s actions must be wilful to deny them severance or termination pay.
"The statutory standard actually requires the employee to be bad on purpose. That's how the courts and tribunals have interpreted it," adds Boshyk.
The OLRB ruled that the employee’s actions did meet the legal threshold for wilful misconduct, as defined in sections 2(1)3 and 9(1)6 of the ESA. According to these provisions, an employee who engages in wilful misconduct, disobedience, or wilful neglect of duty is not entitled to notice or severance pay.
"[The employee] engaged in a wilful act which he knows would likely lead to the destruction of company property," the board stated, after reviewing evidence such as testimonies from other employees, procedure logs, and statements from the human resources manager who conducted the interviews.
Procedural fairness not always required with just cause
An important aspect of this case is that the employee was not interviewed by his employer before his termination, nor was he given an opportunity to provide his side of the story. Despite this, the OLRB held that the employer was not obligated to conduct such an interview or provide procedural fairness when terminating an employee for wilful misconduct.
In her statements, the HR manager said she did not interview the employee being investigated because when she tried to contact him, “he was insubordinate and not cooperative,” the board noted. She also said that since the circumstances around the employee’s conduct were clear, “she did not consider it necessary” to interview him.
She was correct, and the OLRB concluded that the lack of an interview did not invalidate the termination. The board ruled that the worker’s actions spoke for themselves, and MANA had sufficient grounds to terminate his employment without affording him an opportunity to respond.
Importance of strong evidence in wilful misconduct cases
One of the takeaways from this case is the importance of solid, documented evidence when terminating for wilful misconduct.
In this case, the employer relied on production data and the testimony of several employees, including his replacement, whose shift had been disrupted by the misconduct leading to him reporting it to his superior, immediately claiming it had been intentional sabotage.
The evidence presented in court revealed a “known dislike” between the two employees, and this contributed to the OLRB’s finding that the acts “were motivated by some ill-will or malice” directed toward the second employee.
“The investigation clearly showed that he deliberately sabotaged the production,” says employment lawyer Paul Farruggio of Torkin Manes in Toronto.
Employee interviews still recommended in just cause terminations
Farruggio still emphasizes the need for a thorough investigation and documentation to support those decisions, including interviews.
“You definitely want to err on the side of caution," says Farruggio. "Despite the fact that, in this case, they did not interview the employee that was involved in misconduct, the advice should still be to conduct a full investigation, and part of that investigation should include an interview with the employee that is involved in the misconduct.”
Although this decision affirms that employees do not have procedural rights during termination investigations if the employer has just cause, it’s not exactly a get-out-of-jail-free card, says Boshyk. Regardless of how clear a wilful misconduct termination investigation may be after looking at evidence, there is still room for ambiguity.
“I think that by not interviewing an employee that you're about to fire for cause, statutory or otherwise, frankly, you're doing yourself a disservice as an employer, because you're making a decision without necessarily having a full view of all of the facts,” says Boshyk.
Plus, many decisions hinge on credibility — of the employer and the employee — and it is difficult to determine that without speaking directly to the employee. As Boshyk points out, best practice does not always equal procedurally wise.
“That's the gamble,” he says. “Even though you don't have to, if you don't afford those procedural rights, you're running the risk that a court or a tribunal is going to disagree with your decision as the employer after they've heard the full story from both sides.”
