Dishonesty Is Not Always Cause for Termination

June 16th, 2015 by

Grade written on an exam paper, close-up

Dishonesty is not always cause for termination. Mississauga Private School (“MPS”) learned this the hard way in the 2012 decision of Fernandes v Peel Educational.  This case also serves as a reminder that an employer should proceed with extra caution when terminating an employee who may have a claim for disability benefits.

MPS discovered that a teacher, Mr. Fernandes, fabricated students’ grades. For example, he input grades for student presentations that had not yet been given. After some investigation into the matter, MPS terminated Mr. Fernandes’s employment for cause.

The Court cited McKinley v BC Tel, 2001, SCC 38, as the leading case dealing with dishonesty as a basis for termination. The Supreme Court of Canada in McKinley concluded that “a contextual approach is required, rather than a hard line with respect to any amount of dishonesty.” The Supreme Court of Canada explained that “a trial judge must instruct the jury to determine:

(1) whether the evidence established the employee’s deceitful conduct on a balance of probabilities; and

(2) if so, whether the nature and degree of the dishonesty warranted dismissal.”

In this case, the Court found that evidence established that Mr. Fernandes committed the following deceitful acts:

  • he gave incorrect and inaccurate marks;
  • he lied to his employer about how student marks were calculated; and
  • he admitted to falsifying marks on the students’ records.

The Court also considered the following factors regarding the nature and circumstances of the misconduct:

  • Fernandes had been employed with the school for more than 10 years and for the majority of that time he was a well-regarded teacher;
  • the marks were interim marks and it is apparent that the school did not think that the issue was very serious as it still produced the marks to students and parents;
  • the presentation marks were only one part of one course and the presentation made up only one part of the overall mark; and
  • Fernandes admitted his conduct.

The Court balanced all of the above factors and held that immediate termination was not an appropriate sanction for Mr. Fernandes’s conduct. The Court suggested that an appropriate sanction would have been a reprimand and a warning. The Court stated:

“This rather abrupt change in Mr. Fernandes’ professional behaviour should have led the employer to make more of an effort at enquiry to assist Mr. Fernandes rather than to terminate his employment without proper notice.”

In addition, the Court found that Mr. Fernandes became totally disabled at the date his employment was terminated.  Since he would have been able to claim long term disability benefits if it were not for the actions of the employer, the Court held that MPS was liable for the amount of long-term disability benefits that Mr. Fernandes would have been entitled to until age 65.

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