What is workplace wilful misconduct?
Wilful misconduct occurs when an employee engages in wrongful, improper, or unlawful conduct in the workplace on purpose. Wilful misconduct can range from the minor, such as horseplay, to the very severe, such as sexual harassment. Insubordination (when an employee disobeys a legitimate instruction from their employer) is also considered to be wilful misconduct.
What is a "legitimate instruction" from an employer?
In some cases, an employee is justified in refusing an instruction from their supervisor or manager. For instance, employees have a right to refuse unsafe work under the Occupational Health and Safety Act. In other instances, an employee might have reason to believe that their manager's instructions do not reflect the genuine wishes of the employer (i.e. when a manager instructs an employee to do something that would violate a workplace policy).
Is wilful misconduct considered to be "just cause" for termination?
Wilful misconduct that is not trivial and has not been condoned by the employer can be grounds for a just cause termination . However, a court or tribunal will consider each case on its own merits.
What sort of wilful misconduct is "trivial"?
Essentially, "non-trivial" misconduct is when an employee ought to have known that their actions were wrong or against their employer's wishes. Excluding serious actions, most forms of wilful misconduct are relatively trivial, until an employer makes it clear that they are not.
When is wilful misconduct "condoned" by the employer?
Wilful misconduct is condoned if it is allowed to continue without discipline. Misconduct can also be condoned if an employee receives exactly the same discipline for the same recurring misconduct. For example, if an employee only ever receives verbal reprimands for repeated misbehaviour, the employee might develop a reasonable expectation that this is the worst the discipline will ever get.
What should I do if I have been disciplined for wilful misconduct?
The simple answer is to cease the misconduct immediately. Most discipline is a warning, not a punishment in and of itself. If, however, you believe that the discipline was unwarranted, or if you have disobeyed instructions that you believed were illegitimate, we recommend that you seek the counsel of an experienced employment lawyer, who can assess your specific set of circumstances and advise you accordingly.
What can I do if I have been terminated for wilful misconduct?
We strongly recommend that you contact a qualified employment lawyer immediately, as you may have a cause of action against your employer for wrongful dismissal. It is very difficult for an employer to establish just cause on the basis of wilful misconduct, particularly if you have received no prior warnings. Even if you have been terminated without cause and offered a severance, it is always prudent to have an experienced employment lawyer review the severance offer before you accept it, in order to determine if it is reasonable.
What can Hyde HR Law do for me?
The lawyers at Hyde HR Law are experts in wilful misconduct. We will help you determine whether the discipline against you was legitimate or whether you have a case for wrongful dismissal against your employer, and we will vigorously pursue your entitlements if you have been terminated. We have negotiated settlements on behalf of countless clients who have been terminated for wilful misconduct. Contact us today.
