Yes, say lawyers, but it’s not recommended: 'You're making a decision without a full view of all the facts'

A recent Ontario Labour Relations Board (OLRB) decision reaffirmed that employees being terminated for wilful misconduct are not entitled to take part in the investigation into their actions.

The board found that a long-time employee at a Hamilton, Ont. steel mill intentionally shut off critical water pumps during his shift, disrupting production and causing $50,000 in lost production time and other damages. The employee was terminated for his actions, which the employer determined to be sabotage.

The mill, Max Aicher (North America) Limited (MANA), was ordered by an employment standards officer (ESO) to pay the employee termination and severance pay, alleging that he was denied procedural fairness during the investigation — namely, that he wasn’t interviewed and thereby was not able to defend himself or state his case.

In this decision, the OLRB vacated that decision and ordered the damages be repaid to the employer by the director of employment standards.

Statutory vs common law just cause termination standards

A key distinction between statutory and common law termination standards is the role of wilfulness; under common law, an employer can terminate an employee for just cause even if the employee’s actions were not deliberate, therefore a broader range of behaviours can justify termination.

Paul Boshyk, employment lawyer with McMillan in Toronto, explains this...

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