The Employment Standards Act, 2000 provides that an employee who is terminated for wilful misconduct, disobedience or wilful neglect of duty is not entitled to be paid statutory termination pay and, if applicable, severance pay.
The Ontario Labour Relations Board in Hallmark Housekeeping Services Inc. 2013 CanLII 14638 (ON LRB) decided on March 18, 2013 considers what an employer must establish to prove that the employee engaged in conduct that met the statutory test.
In this case an Employment Standards Officer issued an Order to Pay in the amount of $1,166.88 against the employer. The employer applied to review this decision. The employer attended at the hearing and the former employer did not and the hearing proceeded in his absence.
The Board reviewed a number of disciplinary notices issued to the employee for a number of performance related issues arising, in part, out of customer complaints. Ultimately, in the course of a meeting to confront the employee about a variety of inconsistencies in the tracking and reporting documents, the employee “became hostile, confrontational and told King and Melo that they were violating several labour laws.” His employment was terminated on March 19, 2010.
The employer argued that the employee had been terminated for wilful misconduct, disobedience or wilful neglect and therefore was not entitled to receive termination pay under the ESA. According to the Board:
To deny an employee termination pay the employer must establish on the balance of probabilities that the employee engaged in behaviour that constitutes wilful misconduct, disobedience or wilful neglect of duty that was not trivial and not condoned by the employer.
In VME Equipment of Canada Ltd. (Re),  O.E.S.A.D. No. 230, the Referee stated:
[…] There are two general categories of serious misconduct. There will be single acts: insubordination, theft and dishonesty, and physical violence against other employees, for instance, which may, standing on their own, meet that standard of seriousness. As well, there will be less serious repetitive forms of misconduct, which if handled properly by the employer, will also meet this standard of seriousness. The employer, in this scenario, must have explained to the employee after each occurrence that the conduct in question was not acceptable and that if continued would result in termination and there must be, subsequent to these warnings, a culminating incident.
In addition to proving that the misconduct is serious, the employer must demonstrate, and this is the aspect of the standard which distinguishes it from 'just cause', that the conduct complained of is 'wilful'. Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. Rather, the employer must show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. It is, to put it colloquially, being bad on purpose.
The Board found that, given the un-contradicted evidence occasioned by the employees’ failure to attend at the hearing, it had to accept the employer’s evidence. Based on that evidence, the Board concluded that the employee “engaged in a pattern of wilful misconduct despite the clear warnings to cease such behaviour.” The Board revoked the order to pay.
This case provides a recent, albeit brief, review of the wilful misconduct exception under the ESA. You might also be interested in Just Cause... Yes ... But ... , Oosterbosch v. FAG Aerospace Inc., 2011 ONSC 1538 (CanLII) and the more extensive discussion in Wal-Mart Canada Corp. v. Gray, 2002 CanLII 31452 (ON LRB).