Written on behalf of Peter McSherry
The dividing line between dismissal without cause and just cause dismissal can sometimes seem blurred for employers and employees alike. Not all misconduct warrants termination, though seriousness of an act as well as the position of trust held by an employee may make termination an appropriate response. In Fernandes v. Peel Educational & Tutorial Services Limited 2016 ONCA 468 a former private school teacher had his victory at trial overruled by the Ontario Court of Appeal, with the Court finding the Employer did in fact have just cause for firing the teacher for fabricating grades.
Fabrication of Grades
The Employee taught computer studies at the school operated by the Employer for approximately ten years.
In March 2009, after the Employee submitted his students’ grades to the school, the school’s Senior Coordinator noticed that the Employee had used an Excel spreadsheet to track the grades rather than using the software provided by the Employer for that purpose. In addition, a large number of students had blank entries for multiple assignments, which ultimately led to a grade of “0” for those assignments. A final complication was the incorrect calculation of final grades. As a result, the Employee’s classes had exceptionally low grades.
The Employee was asked to correct his mistakes and resubmit his class’ grades. He did so, but once again, his spreadsheet contained numerous errors. The Employee failed to follow a promise to re-submit once more at end of the month, asking for three more days to mark and record grades for assignments which had come in late.
When the Employee submitted his grades for the final time his students’ grades improved dramatically. There were no longer any blank marks assigned to students and his students’ overall marks had become some of the best in the school. The Employer was concerned with some of the marks, including the grading of assignments yet to take place, and perfect scores awarded to students known to have not completed some assignments. As a result, the Employer sought to review the Employee’s grading.
Following the review, Senior Coordinator and a colleague submitted a report stating “Mr. Fernandes appears to have fabricated marks on a number of occasions. He has entered marks in his records before students have done the work or even submitted the assignments. Mr. Fernandes has entered marks for assignments that he has not marked. This appears to be a case of academic fraud.”
The Employee ultimately admitted to fabricating grades and was consequently terminated with cause on April 17, 2009 – the same day the incorrectly graded report cards were delivered to students.
At Trial and Appeal
The Trial Judge found the Employee had admitted to submitting incorrect grades, submitting grades late, giving full marks to students who had not submitted assignments, and leaving out test results. However, despite all of this, the Trial Judge held that the subsequent termination for cause was disproportionate to the Employee’s misconduct. The Employee was awarded with 12 months severance in the amount of $57,000 as well as $116,250 for loss of long-term disability benefits.
The Employee’s victory would prove to be short-lived. On appeal, the Ontario Court of Appeal found that the Trial Judge had erred in applying the principals of just cause dismissal as laid out by the Supreme Court of Canada in McKinley v B.C. Tel., 2001 SCC 38, notably by failing to assess the seriousness of the misconduct. The Court of Appeal further noted the special trust held by a teacher, stating, “Mr. Fernandes’ misconduct went far beyond mere negligence or incompetence. Failing to properly assign marks and evaluate student progress; falsifying students’ grades; repeatedly lying to his employer – these intentional acts constitute serious misconduct.”
The Court of Appeal reversed the Trial Judge’s decision, finding there was cause for termination. In addition, the Court awarded the Employer $75,000 in damages.
Getting terminated can be stressful and confusing for anybody, particularly if you feel that the termination was unfair or unjustified. If you have been fired, you should not sign anything without first taking the opportunity meet with an experienced employment lawyer who can review any documents you have received and advise you on next steps. I can help you understand your right following dismissal and whether your dismissal was lawful. Contact the offices of Peter McSherry online or by phone at 519-821-5465.