Wednesday 4 July 2012

Careless but not Disentitled

Just cause for termination is a thorny issue. Employers often wish to advance it as a means of reducing (hopefully to nil) their obligations to an employee on termination. However, under Ontario employment law, one can be both dismissed for just cause and entitled to termination pay and severance. A fact, I would respectfully submit, lost on many including most judges unfamiliar with the nuances of Ontario employment law.

The 2011 case of Oosterbosch v. FAG Aerospace Inc., 2011 ONSC 1538 (CanLII) succinctly demonstrates the difference.


Oosterbosh was employed by the defendant as a machine operator. That employment commenced December 2, 1990 and concluded with his dismissal on April 1, 2009. FAG manufactures bearings for the aerospace industry. As Justice Haines observed, “Precision and quality control are essential since the failure of such parts can be catastrophic.” To this end machine operators such as Mr. Oosterbosh were required to be particularly vigilant and keep careful records to facilitate tracing in the event of a problem. Justice Haines further found that, “Given the intricate nature of the production process, lateness and absenteeism result in scheduling adjustments that can adversely impact production.”

FAG had implemented an attendance and absenteeism program that tracks such occurrences and provides coaching and ultimately disciplinary measures for those who exceed certain limits within prescribed periods. As might not be surprising given the nature of this blog, Mr. Oosterbosh found himself on the wrong side of the employer’s discipline policy. Mr. Oosterbosh received no fewer than four warnings within a twelve-month period with the result that he was terminated, ostensibly for “just cause.”

At trial the employer argued that Mr. Oosterbosh was dismissed for cause and that, pursuant to O.Reg. 288/01, he was not entitled to termination or severance payments because he was guilty of “wilful misconduct, disobedience or wilful neglect of duty.”

Decision of the Ontario Superior Court

In his reasons for decision, Justice Roland J. Haines held that:

He [Mr. Oosterbosh] was undoubtedly careless and the persistence of that carelessness justified his dismissal. I would not, however, characterize his offending behaviour as “wilful misconduct, disobedience or wilful neglect of duty” that would disentitle him to receipt of termination and severance payments.

In the result Mr. Oosterbosh was awarded his statutory “termination pay” of eight weeks’ pay in lieu of notice, plus 18 weeks’ statutory severance, both in accordance with the provisions of the Ontario Employment Standards Act, 2000 but nothing for common law reasonable notice.


The import of this decision, and others like it, is that unless the employer can demonstrate conduct beyond that which is “careless” and can demonstrate that the conduct was also wilful, and a deliberate attempt to, as lawyers would say, "repudiate the employment contract," employers would be prudent to provide the employee with statutory termination pay.

Contact Me

Are you an employee who has been terminated “for cause,” but disagree with your employer’s position? Ae you an employer who is considering letting someone go and want to know whether you have legal cause to do so? Call me. Email me. Do what works for you.

I can be reached by email at or by phone at 613.238.6321 x233.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He has also been a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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