Employee fired for cause still gets $25,000

In an unusual case, a court awarded a big chunk of cash to a man who was fired for being persistently late for work and making defective airplane parts. This decision highlights the difference in the common law and statutory definitions of "just cause" for termination.

Ontario Superior Court Justice Haines ruled that although Stephanus Oosterbosch was fired for good reasons, he was entitled to both termination and severance pay under the Employment Standards Act (ESA) of over $25,000 in total.

Oosterbosch was employed by FAG Aerospace as a machine operator from December 1990 to April 2009. As the company manufactures bearings for the aerospace industry, precision and quality control are essential.

On two occasions the plaintiff produced a large number of airplane parts that did not conform to specifications. He was also frequently late for his shifts and took overly long meal breaks even after he had been counselled for lateness three times in the previous year.

Prior to his ultimate dismissal, Oosterbosch received several written warnings and then a two-day suspension in accordance with FAG’s progressive discipline policy. He sued the company for both common law damages for wrongful dismissal and termination and severance pay owing under the ESA.

Justice Haines found that in view of his persistent misconduct notwithstanding on-going coaching sessions and warnings, the defendant company had just cause under common law for firing Oosterbosch. Therefore he was not entitled to damages for wrongful dismissal.

However, the judge did not characterize his offending behaviour as “wilful misconduct, disobedience or wilful neglect of duty,” which is the standard the company had to meet in order to deny Oosterbosch termination and severance payments mandated by the ESA.

Under the ESA, a terminated employee with eight or more years of service is entitled to eight weeks of notice or pay in lieu of notice. In addition, where the employer has a payroll of over $2.5 million and the employee has five or more years of service, severance pay of one week per year to a maximum of 26 weeks is payable.

Therefore Oosterbosch was awarded $7,904 for eight weeks termination pay plus severance of $17,127.33, reflecting 17 years and four months employment with the company.

Koskie Minsky employment law partnerArleen Huggins says in all cases it is preferable to sue for both wrongful dismissal damages and ESA termination/severance pay to ensure that even if you cannot make a case for a common law award, the court can still order statutory damages.

See: Oosterbosch v. FAG Aerospace Inc.