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 (read: notice and severance) pay.

The 2011 case of Oosterbosch v. FAG Aerospace Inc., 2011 ONSC 1538 (CanLII), canvasses the issue nicely.


Mr. 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.”

Employer’s Position

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.”

Finding of the Court

In his reasons for decision, the Honourable 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. [Emphasis added. Para. 19]

In the result Mr. Oosterbosh was awarded his statutory, i.e. Ontario Employment Standards Act, 2000 “termination pay” of 8 weeks’ notice and 18 week’s severance, 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.

As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer.  He tweets from @SeanBawden.

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