International Law

. . . In my view the persistence of the plaintiff's misconduct notwithstanding ongoing coaching sessions and warnings constitute a repudiation of the employment relationship. This conclusion is reinforced by the initiation of a further discipline investigation on March 28, 2008 for unsatisfactory work performance before the discipline process was concluded for the infraction on March 20 that resulted in the issuance of the fourth written warning.

A person is reckless when he engages in conduct without regard for the outcome or consequences. Notwithstanding the number of infractions recorded I do not see that the conduct of the plaintiff rises to that level. He 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 under the provisions of the Employment Standards Act, 2000.

• It establishes that a finding of "just cause" at common law will not always equate to "wilful misconduct" under Ontario Employment Standards Act.
• It reminds us that as the threshold for establishing "just cause" is a high one, numerous written warnings and counselling sessions will likely be required before any such finding is made, particularly with regard to a long-term employee.
• It establishes that an employer's progressive discipline system is not dispositive of a "just cause" finding. Whether or not an employer had "just cause" is a legal question which requires a contextual analysis.