Termination for just cause seems like a simple concept. If an employee misbehaves or is incompetent in the workplace, an employer should be able to terminate that employee for just cause. In other words, if an employee acts inappropriately, an employer should be able to fire that employee without paying them any notice. Unfortunately, just cause dismissal is not that simple. Courts in Ontario have set a high bar for when an employer has just cause for termination.

The legislated standard for just cause for dismissal in Ontario is set out in the regulations. O. Reg. 288/01, which is a regulation tied to the Employment Standards Act (ESA), states that employees are not entitled to notice or severance pay if they have been found “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.”

In recent Ontario Court of Appeal decisions, the court has stressed that the type of misconduct that meets the standard of “wilful misconduct, disobedience or wilful neglect of duty” is high. An employer needs to establish that the employee intentionally did something so wrong that it damages the employment relationship beyond repair. This is a higher standard than the common law’s standard for just cause. For example, in Render v ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, the Ontario Court of Appeal found that an employee who “slapped a female co-worker on her buttocks” was entitled to his ESA entitlements, even though the employer was justified in terminating the employee under common law.

A recent Ontario Superior Court of Justice decision gives guidance on the type of wilful misconduct justifies just cause termination under the ESA. In Park v Costco Wholesale Canada Ltd., 2023 ONSC 1013, Robert Park worked as a Costco employee for 20 years in various positions. At the time of his dismissal, he had been promoted to a managerial position. Park was a good employee, who had mostly positive performance reviews. He even created a website for the toys department at Costco. This website served as a platform for employees to easily share files. Unfortunately, Park had workplace conflicts with his colleagues. Park requested that he be transferred to another department, as he was concerned about the workplace conflicts’ effect on his mental health. After Park was transferred, one of his colleagues from the toys department noticed that they could not access the website that Park created. The colleague emailed Park to determine what the issue might be and if they could be given control of the website. Upon seeing the email from the colleague, that Park had a workplace conflict with, Park deleted the website. Park then sent an inflammatory reply to his colleague informing him that he deleted the website. A few hours later, Costco restored the website. Park noticed this and deleted the website again. Park then checked to ensure that the website was permanently deleted. In response to Park deleting the website that he created for Costco twice, Costco terminated Park for just cause. Park responded by filing a claim for wrongful dismissal.

The judge dismissed Park’s claim for wrongful dismissal. The judge noted that since Park created the website for Costco during his working hours, the website was Costco’s property. The judge then proceeded through the test to determine if deleting Costco’s website twice was sufficient wilful misconduct to justify termination for just cause. The judge found that the misconduct was contrary to the terms of the employment agreement. The judge considered Park’s long employment relationship and Park’s workplace conflicts at the time of the termination. However, the judge found that as a manager along with the severity of the misconduct, the just cause dismissal was justified. The court even considered the Render decision, noted above, and still found Park’s behaviour to be wilful misconduct.

Despite the decision in Park v Costco Wholesale Canada Ltd providing clarity on the type of behaviour that constitutes wilful misconduct, claiming a just cause dismissal is still a high bar to meet in Ontario. Often employers want to use just cause dismissal for much lighter infractions to avoid paying notice to an employee. To establish a just cause dismissal, an employer will need to either prove that a single act justifies the just cause dismissal after an investigation or through documented progressive discipline.

How Suzanne Desrosiers Professional Corporation can help

Before terminating an employee, regardless of the cause, you should contact an employment lawyer. The employment lawyers at Suzanne Desrosiers Professional Corporation can guide you through your legal options for terminating an employee. A call can save you from the much higher expense of defending a wrongful dismissal claim. If you are served with a wrongful dismissal claim, one of our employment lawyers can help you with your defence. To contact one of our employment lawyers please call us at 705-268-6492 or email us at info@sdlawtimmins.com.