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  • Rajinder Batra

    Rajinder Batra is a retired Employment Standards Office with 15 years experience with the Ontario Ministry of Labour. He regularly contributes articles regarding the rights of employees and obligations of the employers under Employment Standards Act, 2000 to various publications. Readers are encouraged to contact the author with their questions and the author is willing to share his knowledge and expertise with MyBindi's readers at no charge.

    Rajinder can be contacted via e-mail at esaconsulting@hotmail.com or fax at (905) 331-1805. Please note your questions (and Rajinder's response to them) may be shared online to benefit other members of the MyBindi community.
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« Temporary Lay Off | Main | Some Questions Regarding Notice of Termination »

11/25/2009

Wilful Misconduct, Disobedience or 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 behavior was so reckless as to amount to wilful misconduct.

(e)  Conflict of Interest

Breach of trust, off-duty misconduct

-  The employee is guilty of behavior 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 behavior 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 behavior (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 behavior, it loses the right to terminate an employee without written notice for the simple fact that the employee does not know such behavior is unacceptable to the employer.



This information is provided for guidance only and should not be considered as a legal advice.

If you have further questions regarding your entitlements under the Act, please send your questions by e-mail at esaconsulting@hotmail.com or by fax at (905) 331-1805.

Posted at 02:59 PM |

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