Wilful misconduct (employment standards)

A buyer weighing a dismissal after closing meets this phrase in Ontario’s O. Reg. 288/01, section 2. It prescribes, for the purposes of section 55 of the Employment Standards Act, 2000, employees who are not entitled to notice of termination or termination pay under Part XV of the Act. One group is an employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.

What the ministry says

The ministry’s termination guide says “wilful” includes when an employee intended the resulting consequence or acted recklessly if they knew or should have known the effects of their conduct. It also says poor work conduct that is accidental or unintentional is generally not considered wilful.

What to ask

• What conduct the seller says qualifies, and what record of it exists.
• Whether the employer knew of it and kept the employee on, since the exemption requires conduct that has not been condoned.
• Whether a contract or another claim gives the employee more, because the regulation speaks only to entitlements under Part XV of the Act.

See your obligations if you terminate employees after buying a business and termination pay. This entry covers Ontario only; check the rules where you are.