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It’s not news to readers of this blog that proving just cause for the dismissal of an employee is a high hurdle. Our clients also know that we usually recommend the continuation of a dismissed employee’s group benefits during negotiations post-dismissal.  Now there’s a case to highlight the important connection between these two principles.

Remy Fernandes was a teacher at Mississauga Private School for 10 years, but not a good one. At trial, the judge found that Mr. Fernandes had: delivered marks that were both late and incorrect; used a computer program that didn’t provide accurate marks (he was the computer teacher!); falsified students’ marks; lied to his employer about how he calculated marks; and eventually lied to the Court about how he marked presentations.

Sounds pretty bad, right? Sounds like a fundamental breach of his employment contract, right? But the judge found that the School should have reprimanded Mr. Fernandes and given him a warning that if he didn’t improve, his employment would be terminated.  This decision appears to have been influenced by the fact that immediately following dismissal, Mr. Fernandes was found to be disabled by major depressive disorder, anxiety neuroses, panic attacks and post-traumatic stress disorder.  The trial judge suggested that the abrupt change in Mr. Fernandes’ performance ought to have caused the School to make enquiries about his health.

So the trial judge found that Mr. Fernandes was wrongfully dismissed and as a result, lost the long-term disability benefits which would otherwise have been payable to him, as the diagnosis of his severe mental health illness was made during the reasonable notice period during which group benefits ought to have been continued.

Mr. Fernandes was awarded one year’s wages and pension plan contributions – about $55,000. He was also awarded $116,250 for loss of long-term disability benefits and $130,000 in legal costs.

Yikes!

Not surprisingly, the School appealed. And no doubt breathed a sigh of relief when they read the Court of Appeal decision.  Writing for the majority, Justice Gillese found that “Mr. Fernandes’ misconduct cannot be reconciled with his obligations as a teacher. … Considered in context, that misconduct was sufficiently serious that it justified dismissal without notice.”

All the decisions of the trial judge were set aside and the School was awarded costs of $30,000 for the appeal and $75,000 for the trial. In the normal course, this would have been something between 50% and 60% of their actual legal costs.

The Supreme Court of Canada has now refused Mr. Fernandes’ request for leave to appeal.

A close call for the School, no doubt. But the story gives us an excellent illustration of the importance of paying careful attention to every issue when terminating employment.

If your organization is considering a potential termination, Siskinds’ Labour & Employment Group would be pleased to assist in developing a strategy to protect your interests and minimize the likelihood of an expensive trip to the Court of Appeal!

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