Recent Ontario case shows what kind of evidence is needed for dismissal
Generally, it’s very difficult for an employer to prove it has just cause, meaning it is justified in terminating 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.
From 1999 until 2009, when his employment was terminated for just cause, Remy Fernandes was a teacher at a private school.
The school was accredited by the Ministry 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 concerning the assessment and evaluation of student progress and achievement.
The 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. The 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 required to submit their grades for the April interim report cards to be prepared, Fernandes submitted his grades with numerous 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 fixed, leading to a third submittal.
The 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 completed all of her work in the course. When confronted with the grades, Fernandes initially maintained they were accurate. However, when the vice-principal suggested the students be called in to talk about their grades, Fernandes started to cry, admitted he had falsified his marks, and apologized. He was terminated soon afterwards.
The court decisions
The trial judge noted that Fernandes admitted his marks were late, that his calculations for student and class averages were incorrect, and that he gave full marks to students who had not completed their assignments — knowing such a practice was against school policy. The 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 plaintiff. 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 effort to assist him, rather than terminate his employment without proper notice.
The school was ordered to pay one year’s salary, lost long-term disability benefits and the teacher’s legal costs.
However, the Ontario Court of Appeal overturned the trial judge’s decision and allowed the school’s appeal.
The test for just cause
Whether an employer is justified in dismissing an employee on the grounds of misconduct requires an assessment of the context of the alleged misconduct. The test is whether the employee’s misconduct gave rise to a breakdown in the employment relationship.
The principle of proportionality underlies this approach: An effective balance must be struck between the severity of an employee’s misconduct and the sanction imposed.
To answer the question of whether misconduct is sufficiently 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.
The 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. The appellate court noted that the trial judge failed to assess the seriousness of the plaintiff’s multiple incidents of wrongdoing. The 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 progress, the plaintiff’s misconduct went beyond negligence or misconduct. Failing to properly assign marks, falsifying students’ grades, and repeatedly lying to his employer were intentional acts that constituted serious misconduct.
Consider the surrounding circumstances: The courts must consider the particular circumstances of both the employer 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 reposed in the employee.
The appellate court noted that although the trial judge took into consideration the teacher’s age, employment history and lack of performance issues for the first nine years of his employment, the trial judge failed to consider that he did not describe anything going on in his life that would affect his job performance.
The appellate court also found that the trial judge’s failure to consider the employer’s circumstances was an error in law. Given that the school was a private school whose accreditation came from the Ministry 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.
The court stressed that even though the school did not suffer harm, it is the severity of the potential harm that is considered in just cause.
Decide whether dismissal was warranted: In this step, the court must consider 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.
The 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 assessing just cause in mind. The court signalled that employers should be aware of any difficulties an employee may have that could affect 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 termination as economic capital punishment. It is generally very difficult — but not impossible — to prove just cause. Employers should therefore consult with an employment lawyer before terminating an employee for just cause.
Doug MacLeod is the principal at MacLeod Law Firm in Toronto. He can be reached at (416) 317-9894 or at [email protected]