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Irvin Schein blogs "Just Cause For Termination of Employment: Can the Pendulum Swing Any Further?"

Nov 17, 2014

Written by Irvin Schein and originally published at

The recent case of Fernandes v. Peel Educational & Tutorial Services Limited provides a useful insight into an issue which has had employers gnashing their teeth for years.

In this case, a teacher who had been employed by what is known as the Mississauga Private School for over ten years was terminated for cause on April 17, 2009.

The evidence indicated that until the spring of 2008 he had been a good and dedicated teacher. Differences began to appear between him and his superiors towards the end of the 2007/2008 year.

By the date of his termination, the school was of the view that the teacher was sloppy and inconsistent in his record keeping and calculations which impacted student marks, he was contravening school policy by attributing a mark of zero for any missed assignments, he had allowed distorted marks to appear on report cards, he had fabricated marks on a number of occasions by entering marks for assignments that he had not marked, and entering marks before the work had been done or submitted by the students, and he had failed to mark or return assignments. In the school’s view, this was tantamount to academic fraud. This conclusion led to a decision to terminate the teacher’s employment for cause.

The teacher sued for wrongful dismissal. The trial took place over ten days.

During the course of trial, the teacher admitted a number of these transgressions including his violation of school policy by giving full marks to students who had not completed their assignments. He admitted giving students a zero mark in breach of the school policy that no student can get a zero for anything other than plagiarism (interestingly the judge expressed the opinion that this policy seemed astonishing to him).  Astonishing or not, this was a rule of the school and the teacher was aware of it and decided not to follow it.

The court made a number of findings damaging to the teacher’s case. The court found that he gave incorrect marks, marks that he did give were late, he allowed students to submit overdue assignments, and even though he was the computer teacher, his own computer program did not provide accurate marks. The court found that when he met with his superiors immediately prior to his dismissal, he lied to them about how marks were calculated. He then was found to have lied to the court about how student presentations were marked. The court found that he had admitted to falsifying marks on the student records.

The court reviewed the law relating to dishonesty as a basis for termination. The court observed that as indicated by the Supreme Court of Canada, in dealing with the topic of dishonesty, a contextual approach is required rather than a hard line.  According to the Supreme Court of Canada, just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to the employer.

Accordingly, it is not true that dishonest conduct always amounts to cause for dismissal notwithstanding the surrounding circumstances. Underlying this approach is the principle of proportionality.  In other words, there has to be a balance struck between the severity of the misconduct and the sanction imposed.

In this case, the court found that notwithstanding all of the transgressions proven at trial, immediate termination was not the appropriate sanction for the teacher’s misconduct. The court found that the school could have provided a reprimand and a warning that if such conduct was repeated, it would lead to termination.  The fact that the teacher’s professional behavior had changed so abruptly after years of satisfactory service should have led the school to make more of an effort and inquiry to assist the teacher rather than to terminate his employment without notice.  At the end of the day, the court found that the punishment outweighed the seriousness of the infraction.

This is another useful reminder of how far the pendulum has swung in employment cases. Employers simply have to take every possible step to analyze and assess every aspect of an employee’s behavior before making a decision to terminate without notice.  Short of outright fraud on an employer resulting in personal financial gain to the employee, or repeated transgressions in the face of a series of warnings, cases in which just cause will be found appear to be entering the realm of an endangered species.