A number of our blog entries have discussed the challenges employers face in ending an employment relationship for cause, without having to provide notice beforehand (or pay in lieu of notice). Generally, employees must engage in serious misconduct before being subjected to what the Courts have called “the capital punishment of employment law”; theft, workplace violence, and other misconduct where the employment relationship cannot be rehabilitated.
Although it’s well-known that the bar to terminate for cause (or “just cause” in a unionized environment) is high, the case of Fernandes v. Peel Educational underlines just how difficult a for-cause termination can be.
In Fernandes, Peel Educational Tutorial Services Limited terminated Fernandes, a private school teacher with ten years of service. In the months leading up to his termination, Fernandes filled out a number of student report cards with a grade of zero where a student had failed to turn in an assignment on time; however, school policy was to leave the assignment mark blank (and thus not affect the student’s average). The school instructed Fernandes to revise the report cards. However, the revised reports Fernandes submitted replaced many of the zero grades with marks (which suggested that the assignments had, in fact, been submitted). Upon investigation, the school determined that Fernandes had assigned full marks for work that had not been done and, in some cases, continued to record grades of zero against the school’s instructions.
The school subsequently dismissed Fernandes for cause (and without notice) on the grounds that he had falsified student records.
In the subsequent wrongful dismissal action, the Court found that Fernandes had, in fact, submitted incorrect and falsified marks and lied to both the school and the Court about how he had calculated student grades. The Court also found that this conduct was not sufficient to warrant dismissing Fernandes without notice. In reaching this conclusion, the Court considered that Fernandes had worked for over 10 years without incident. The Court also noted that the school had circulated the false marks to parents and students despite having suspicions about their veracity, stating at paragraph 179 “[i]f [the submitting of false marks] were such an egregious failing on the part of Mr Fernandes, the marks would not have been released”.
The Court awarded Fernandes, among other things, one year’s pay as damages for wrongful dismissal.
The lesson of Fernandes and other cases where the courts have not found cause for termination is that employers must be extremely cautious when seeking to terminate an employee without giving notice, or pay in lieu of notice, regardless of the circumstances. Employers must take into account all of the surrounding circumstances in order to determine whether there is any hope of salvaging the employment relationship. Even where termination is the only option, it is often worth evaluating the likelihood of litigation in order to determine whether a “for cause” termination is the best course of action.