Being accused of wilful misconduct can put your job, professional reputation and severance pay at risk.
An employer may use this term in a termination letter to suggest that you deliberately did something so serious that you are owed no compensation. However, using the words “wilful misconduct” does not prove that the strict legal standard has been met.
The Quick Answer: What is wilful misconduct in Ontario? It is intentional or extremely reckless misconduct, disobedience or neglect of duty that is not trivial and has not been accepted or ignored by the employer. If your employer proves this standard, you may lose minimum termination and severance entitlements under Ontario’s Employment Standards Act. However, ordinary mistakes, poor performance and accidental conduct generally do not qualify.
On This Page:
- 1. What Is Wilful Misconduct?
- 2. Examples and Common Misunderstandings
- 3. Wilful Misconduct vs. Just Cause
- 4. Can You Lose Severance or EI?
- 5. What Should You Do?
What Is Wilful Misconduct in Ontario?
Ontario employment standards use the full phrase “wilful misconduct, disobedience or wilful neglect of duty.”
For the exemption from minimum termination and severance entitlements to apply, the employer generally must show that the conduct was:
- Wilful: The employee intended the result or acted with extreme recklessness
- Misconduct, disobedience or neglect: The employee did something wrong, deliberately disobeyed or intentionally failed to perform an important duty
- Not trivial: The behaviour was meaningful rather than minor or insignificant
- Not condoned: The employer did not knowingly tolerate or accept the behaviour
The employer bears the responsibility of proving that these requirements apply.
What is wilful disobedience?
Wilful disobedience generally involves deliberately refusing a clear, important and lawful workplace instruction.
An employee may have a legitimate reason for refusing an instruction if it was unsafe, illegal, discriminatory or unclear. A misunderstanding or respectful disagreement is not automatically wilful disobedience.
What is wilful neglect of duty?
Wilful neglect of duty involves intentionally failing or refusing to perform an important job responsibility.
It is different from being unable to complete the work because of inadequate training, illness, disability, excessive workload or an honest mistake.
Examples of Wilful Misconduct in Ontario
Conduct that may support a wilful-misconduct allegation can include:
- Deliberately violating a clear and important workplace rule
- Knowingly falsifying company records
- Intentional theft, fraud or misuse of company property
- Deliberately disclosing confidential information
- Refusing a clear, lawful and reasonable direction without justification
- Intentional and repeated absenteeism after clear warnings
- Extremely reckless conduct that creates an obvious risk of serious harm
These examples are not automatic findings. The employer must still prove what happened and show that the complete legal standard is satisfied.
What usually does not qualify as wilful misconduct?
The following issues generally do not meet the standard on their own:
- An isolated mistake
- Ordinary negligence or carelessness
- Poor performance or lack of skill
- A misunderstanding of an instruction
- Conduct caused by illness or disability
- A minor policy violation
- Behaviour the employer previously knew about and tolerated
An employer should not relabel ordinary performance concerns or a single lapse in judgment as wilful misconduct simply to avoid paying compensation.
What does it mean if the employer condoned the behaviour?
Condonation can occur when an employer knows about certain behaviour but does not act, creating the impression that the conduct is accepted or not serious enough to justify termination.
An employer may be unable to rely on tolerated behaviour later without first warning the employee that it is unacceptable and could result in dismissal.
Wilful Misconduct vs. Just Cause
Wilful misconduct and termination for cause are related, but they are not identical.
Just cause is the common-law standard used to determine whether an employer can dismiss an employee without reasonable notice or common-law severance.
Wilful misconduct is the narrower Ontario employment-standards test used to determine whether the employee also loses minimum termination pay and statutory severance pay.
This distinction is important because an employer may wrongly assume that proving any type of just cause automatically eliminates every payment.
Does one act of misconduct justify dismissal?
Not always. The employer should consider the seriousness of the conduct and whether termination is a proportionate response.
Relevant factors can include your position, length of service, previous record, the harm caused and whether a warning or lesser penalty could have corrected the issue.
A single incident may justify termination where it is exceptionally serious. However, one mistake or policy breach does not automatically destroy the employment relationship.
Can You Lose Severance Pay for Wilful Misconduct?
Yes, if your employer proves the legal standard. An employee found guilty of wilful misconduct, disobedience or wilful neglect of duty may lose minimum termination pay and, where applicable, statutory severance pay under the ESA.
However, if the allegation does not meet the common-law just-cause standard—which is an extremelty high bar to hit—you may still be entitled to full Ontario severance pay.
That package may include salary, benefits, bonuses, commissions and other regular compensation. Depending on your age, position, length of service and the availability of similar work, compensation can reach as much as 24 months’ pay.
Can you receive EI after being fired for wilful misconduct?
Possibly. Service Canada makes its own decision about misconduct for Employment Insurance purposes.
Your employer’s allegation, termination letter or Record of Employment does not automatically determine the result. Service Canada will review the circumstances and your explanation.
Apply promptly, even if your employer claims that you were fired for misconduct.
What Should You Do if You Are Accused of Wilful Misconduct?
- Don’t resign. Resigning could affect your right to severance and EI.
- Ask for the allegation in writing. Confirm what happened, when it allegedly occurred and which rule was involved.
- Preserve your records. Keep emails, messages, policies, warnings and documents that support your explanation.
- Prepare before responding. Do not guess, exaggerate or agree with inaccurate wording.
- Do not sign immediately. Have any admission, resignation, settlement or release reviewed first.
- Contact an Ontario employment lawyer. Get advice before an investigation or immediately after being fired.
If you have already been dismissed, keep your termination letter, employment contract, workplace policies, investigation records and Record of Employment.
Do not accept that a termination for cause is valid—or that you are owed nothing—until the allegation and your compensation have been properly reviewed.
Speak With an Ontario Wilful Misconduct Lawyer
If you have been accused of wilful misconduct, suspended during an investigation or fired without severance, you don’t have to handle the situation alone.
The Ontario employment lawyers at Samfiru Tumarkin LLP can review the allegations, investigation, workplace policies and your employment history.
We can determine whether your employer has met the legal standard, respond on your behalf and pursue the full compensation you are owed—potentially up to 24 months’ pay.
The process doesn’t need to be overwhelming. Our team can guide you through the investigation or termination and protect your income and professional reputation.