Wilful Misconduct, Disobedience and Wilful Neglect of Duty

If you are employed in the province of Ontario and the company falls under its jurisdiction, you may be covered under the Employment Standards Act, 2000. The Act sets minimum standards a company must comply with. If it does not, you have a right to file a claim with the Ministry of Labour. If you are currently working for the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.
 
If you have worked for the company for at least 3 months, you must be given a written notice before termination. Your employment can be terminated for any reason, except for pregnancy and parental leave and reprisals.
 
If you or the employer disagrees with the investigating officer’s decision, both parties have a right to appeal to Ontario Labour Relations Board within 30 days of the officer’s decision. The Board appoints a referee to hear the appeal. It does not cost the employee to request an appeal but the employer may be required to deposit monies in trust with the Ministry of Labour if it is found to be owing. The referee decision is final and binding on both parties.    
 
An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer is not entitled to notice of termination
 
Wilfulness
   
The actions/omissions alleged by the employer must have been wilful on the part of an employee. In other words, the employee must have bad on purpose, that is, the employee knowingly and deliberately did or failed to do so what was expected of him. Conduct that is accidental or involuntary will not be considered to be wilful.
 
Following would be useful in understanding wilful misconduct:
 
(a)             Fraud, theft, etc.
          falsified time sheets
          theft of cash or property of the employer
(b)            Alcohol or drug abuse
being under the influence of alcohol during working hours. Drinking due to alcoholism – the behaviour is due to a recognized illness and therefore is not wilful.
(c)             Failure to  follow company policy
          the following criteria should be satisfied:
1)      the rule must be clear and unequivocal
2)      the rule must have a substantial on the employment relationship (except perhaps in cases of repeated, deliberate infractions of less substantive rules where there is no Condonation by the employer)
3)      the rule must have been communicated to the employee
4)      the employee must know (or ought to know) in advance that the conduct could result in his/her termination
5)      the rule must not require the employee to do anything illegal or unsafe. 
(d)            Recklessness
the employee’s behaviour was so reckless as to amount to wilful misconduct.
(e)             Conflict of Interest
Breach of trust, off-duty misconduct
          the employee is guilty of behaviour that seriously affects a position of trust which s/he holds with the employer and/or the employer’s clientele or puts him/her into serious conflict of interest with the employer or prevents him/her from performing his/her duties.
          Can include off duty conduct where such conduct may or may not prevent the employee from carrying on his/her duties. 
 
Recurrence of the behaviour about which the employee was previously warned may be relied on as a “culminating incident” for which the employee may be terminated without notice.
 
Disobedience
 
Although the word “wilful” does not appear before the term “disobedience” in the exemption, it is implied that disobedience involves an element of wilfulness.
 
In order for there to be disobedience within the meaning of the exemption, the same factors apply as are listed under wilful misconduct re: breach of company policy.
 
Wilful Neglect of Duty
 
Similar to wilful misconduct except that the exemption focuses on the failure to do something rather than doing of something.
  
After-acquired” information can be used in determining whether the exemption applies. It does not matter what the “after-acquired” information is for. Whether it is related to the termination or not, it can be used if it is wilful.
 
Condonation
 
The Act requires that the employee’s behaviour (wilful misconduct, disobedience or wilful neglect of duty) not have been condoned by the employer. In other words, if the employer fails to take any action against the employee for such behaviour, it loses the right to terminate an employee without written notice for the simple fact that the employee does not know such behaviour is unacceptable to the employer.
 
This information is provided for guidance only and should not be considered as a legal advice.

This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.

If you have any questions regarding your employment, please contact the writer by e-mail at esaconsulting@hotmail.com

If you don’t have access to e-mail; you can fax your question at (905) 331-1805.

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