Teacher dismissed for submitting incorrect marks
It can be very difficult for employers to justify 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 appropriate in the circumstances. However, as demonstrated 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 seriousness of an employee’s actions can justify a termination for cause.
The employee, Remy Fernandes, was employed 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 accurate 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 seeking, 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’ employment for cause and awarded damages including 12 months’ notice.
Mississauga Private School appealed the decision to the Ontario Court of Appeal.
The Ontario Court of Appeal overturned the lower court’s decision and determined that Mississauga Private School was justified 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; repeatedly lying to his employer — these intentional acts constitute serious misconduct.”
Lessons for employers
The above decision demonstrates the difficulty 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 Educational & Tutorial Services Ltd., 2016 CarswellOnt 9377 (Ont. C.A.).
