Wilful Misconduct

First published on Thursday, Jun 04, 2020

Last updated on Thursday, Sep 22, 2022

Employee misconduct is a common issue faced in Canadian workplaces. Even worse, sometimes employee misconduct may be intentional; this is referred to as wilful misconduct. Employers must establish policies and practices to handle wilful misconduct in the workplace.

Failure to control misconduct in your workplace can leave you with potentially difficult conversations to have, or even dismissals.

In this guide, we will go over what wilful misconduct is, common types of wilful misconduct and how to handle wilful misconduct in the workplace.

What is Wilful Misconduct?

Various provincial and federal employment standards legislation do not define wilful misconduct. However, the meaning of wilful misconduct has been developed through common law (judge-made law).

Wilful misconduct occurs when an employee engages in wrongful, improper, or unlawful conduct in the workplace, on purpose. For the misconduct to be considered wilful, the misconduct has an element of intent and is deliberate. The misconduct may also harm the employer directly or indirectly.

What is Considered Wilful Misconduct?

Wilful misconduct can range from minor instances such as taking a break that extends past the allotted time limit, to extremely severe misconduct such as sexual harassment.

Some examples that may be considered wilful misconduct are:

  • Refusing to follow company rules.
  • Failing to follow employer or manager’s instructions.
  • Working under the influence of alcohol or illegal/controlled substance.
  • Falsifying timesheets.
  • Theft.

What is Not Considered Wilful Misconduct?

To know whether an employee’s misconduct was wilful, you must understand what is not considered wilful misconduct.

It is well established that wilful misconduct is not trivial misconduct and has not been condoned by the employer. Acts that have been condoned by the employer would be seen as accepted practices in the workplace.

For example, an employer who knows an employee is intoxicated and still allows them to attend their shift, which is in violation of company policy, would most likely be found to condone the act.

Moreover, gross negligence and wilful misconduct are sometimes used synonymously, but are different. Gross negligence refers to when an employee, who has a duty of care, fails to perform their duty of care to the expected standards and damages occur. There is often no intent or purpose in the act of gross negligence and therefore it may not be considered wilful misconduct.

There are some cases where an employee may be justified in refusing to follow a manager’s instructions and the refusal would not be considered wilful misconduct. Employees have the right to refuse unsafe work under occupational health & safety legislation.

For example, an employee refusing the employer’s instructions to climb a shelf without a ladder. An employee has the right to refuse unsafe work if it is likely to endanger the employee or others.

Am I Entitled to Terminate an Employee for Wilful Misconduct?

According to employment standards legislation, if an employee engages in wilful misconduct, the employer is not required to provide the employee with the minimum statutory notice of termination.

Under the legislation, if an employer terminates an employee, the employer must provide them with notice of termination or pay in lieu thereof.

If an employee has engaged in wilful misconduct, the employer may to terminate the employee immediately, without providing notice of termination or pay in lieu thereof.
Wilful misconduct is an exception to providing notice of termination. This is commonly referred to as “just cause” termination.

Each province has established their own employment standards legislation. For example, provincially regulated workplaces in British Columbia are governed by the Employment Standards Act. Other provinces include:

  • Ontario’s Employment Standards Act.
  • Alberta’s Employment Standards Code.
  • Manitoba’s Employment Standards Code.
  • The Saskatchewan Employment Act.

Federally, the Canada Labour Code governs non-unionized employees. Examples of federal workplaces are:

  • Transportation companies, such as trucking companies and railways.
  • Port services such as ferries that cross provincial or international borders.
  • Banking Institutions.

The courts have established that terminating an employee for wilful misconduct in accordance with employment standards legislation is a very high standard to meet. The conduct in question must rise to a level of almost criminal intent and has an element of being pre-planned, not simply a spur-of-the-moment conduct.

If the conduct does not rise to the required standard set by the courts, employers may still be required to provide employees with notice of termination or pay in lieu of notice. In certain circumstances, severance pay may be required in accordance with employment standards legislation.

How to Handle Employee Wilful Misconduct

If you find yourself in a situation of having to deal with an employee’s misconduct and you are determining if the misconduct rises to a level of wilful intent, here are a few things you can do.

Assess the Misconduct

It is your duty as an employer to assess and investigate all incidents of misconduct in the workplace. This may include incidents of workplace harassment (including sexual harassment) or other complaints by employees about misconduct.

By assessing and investigating the misconduct, you can determine whether there was any motive, intent, orand pre-meditation that could justify wilful misconduct and a just cause termination.

If after assessing and investigating the misconduct you have determined that it was not wilful, you may still be entitled to terminate the employee under common law for just cause. You would otherwise be required to provide notice of termination, and severance pay if applicable, under employment standards legislation.

Alternative Disciplinary Measures

Terminating an employee for cause is considered the “capital punishment” of employment law. Absent of serious and wilful misconduct, you may want to consider alternative disciplinary measures to address such misconduct prior to deciding to terminate the employee.

Other options that may be considered are temporarily suspending the employee or terminating the employee without cause.

Inquire if there is any Duty to Accommodate

In some circumstances, acts or omissions that may be considered wilful misconduct are a result of a disability or other protected ground under human rights legislation.

For example, an employee who has been diagnosed with alcoholism may be protected under applicable human rights legislation, which would trigger the employers’ duty to accommodate.

You must speak with the employee to determine if they require any reasonable accommodations prior to taking any disciplinary action, up to and including termination of employment.

Get Advice on Wilful Misconduct with BrightHR

As an employer, it is important to assess, investigate, and determine whether wilful misconduct reaches the high standard imposed by the courts to disentitle employees from their statutory notice at termination.

It is important that you address misconduct in a timely manner to avoid further implications such as condonation. You may be at risk of having a lawsuit commenced against you, which could lead to you paying thousands of dollars in legal fees and payouts.

If you need assistance with dealing with wilful misconduct and termination, our BrightAdvice service allows you to receive quality advice on any employment issues you may have.

Contact us on 1 888 220 4924 or book a demo online today.

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