Conduct justifying termination of employment

Not all misconduct justifies termination. Richards v. Rainy River Cattlemen's Association, 2012 ONCA 260 sets out the test:

[17]       The appellant raises two grounds of appeal, which I will discuss in turn in the context of the principles set out by Gillese J.A. in Dowling v. Ontario (Workplace Safety and Insurance Board) (2004), 192 O.A.C. 126 and in Roden v. The Toronto Humane Society (2005), 202 O.A.C. 351.  At para. 49 of Dowling, Gillese J.A. explains that in employment, "the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship."  She further explains that "the sanction imposed for misconduct is to be proportional – dismissal is warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship."  The inquiry is a factual one "to be determined by a contextual examination of the nature and circumstances of the misconduct."

[18]       Dowling describes the trial judge's task as follows:

1.       determining the nature and extent of the misconduct;

2.       considering the surrounding circumstances; and,

3.       deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).

[19]       In Dowling, at para. 72, Mr. Dowling was found to have repudiated his employment contract by repeatedly engaging in dishonest conduct that was incompatible with that contract.  In Roden, two employees were dismissed for their unequivocal refusal to perform their assigned duties.  Gillese J.A. explains that their refusal amounted to repudiation and at para. 46 that "the employer is entitled to accept the repudiation and treat the employment relationship as terminated because the parties no longer agree on the fundamental terms of the contract."