Being accused of workplace misconduct can put your job, reputation and income at risk. You may be asked to attend an investigation meeting, suspended from work or warned that your employment could be terminated.
An allegation does not automatically prove that you did something wrong. It also does not necessarily give your employer the right to fire you without severance pay.
The Quick Answer: What is workplace misconduct? It is behaviour that may violate an employee’s workplace duties, an employer policy or an important condition of employment. Misconduct can lead to discipline or termination, but the employer must consider what happened, how serious it was and whether dismissal is a proportionate response. If the conduct does not justify termination for cause, you may still be entitled to full severance pay—as much as 24 months’ pay.
On This Page:
- 1. What Is Workplace Misconduct?
- 2. Examples of Employee Misconduct
- 3. Minor vs. Serious Misconduct
- 4. What Happens After an Allegation?
- 5. Can You Be Fired or Lose Severance?
- 6. What Should You Do?
What Is Workplace Misconduct?
Workplace misconduct generally means behaviour that conflicts with an employee’s duties, workplace rules or the trust required in the employment relationship.
It can involve something an employee intentionally did, refused to do or failed to do. However, not every mistake, disagreement or performance problem amounts to misconduct.
When assessing an allegation, important questions include:
- What actually happened?
- Was the behaviour intentional?
- Did the employee know the rule or expectation?
- How serious was the impact?
- Was this an isolated incident or repeated behaviour?
- Did the employee provide an explanation?
- How did the employer respond to similar conduct in the past?
Is poor performance workplace misconduct?
Usually not by itself. An employee may struggle because of inadequate training, unclear expectations, inexperience, workload, illness or an honest inability to meet a target.
Poor performance becomes more concerning when an employee deliberately refuses to work, ignores clear directions or repeatedly fails to make an effort after receiving reasonable support and warnings.
An employer should not simply relabel ordinary performance issues as misconduct to avoid paying severance.
Can off-duty behaviour be workplace misconduct?
Sometimes. Conduct outside work may become an employment issue if it has a meaningful connection to the employee’s job or seriously harms the employment relationship.
The employer may consider whether the conduct damages its reputation, prevents the employee from performing the job or creates a serious workplace concern. Private conduct with no meaningful connection to work is less likely to justify discipline.
Examples of Employee Misconduct in the Workplace
Workplace misconduct can take many forms. Common allegations include:
- Refusing a reasonable and lawful workplace instruction
- Repeated lateness or unexplained absences
- Dishonesty or providing false workplace information
- Misusing company property, systems or confidential information
- Violating an important safety rule
- Harassment, threats or workplace violence
- Theft, fraud or falsifying records
- Serious conflicts of interest
- Using alcohol or drugs in a way that affects workplace safety or performance
- Breaching a clear and important workplace policy
The label used by the employer does not determine the outcome. For example, calling an incident “dishonesty,” “insubordination” or a “serious policy violation” does not automatically make termination for cause legal.
Is refusing an instruction misconduct?
Deliberately refusing a clear, reasonable and lawful instruction may be insubordination.
However, an employee may have a valid reason for refusing. The instruction may be unsafe, illegal, discriminatory, unclear or outside the employee’s duties.
A misunderstanding or respectful disagreement is not automatically misconduct.
How do you report misconduct in the workplace?
Follow the reporting process in your workplace policy where possible. Depending on the allegation, that may mean contacting a manager, human resources, an ethics hotline or another designated person.
Keep your report factual. Identify what happened, when it occurred, who was involved and whether there are witnesses or supporting records.
Avoid exaggeration, speculation and unnecessary workplace discussion. Knowingly making a false or reckless complaint could create a separate workplace issue.
Minor Misconduct vs. Serious Misconduct
Not all misconduct should lead to the same consequence.
| Lower-Level Misconduct | Potentially Serious Misconduct |
|---|---|
| An isolated minor policy breach | Theft, fraud or deliberate falsification |
| Occasional lateness | Workplace violence or serious threats |
| A misunderstanding or judgment error | Deliberate disclosure of confidential information |
| Conduct that can reasonably be corrected | Conduct that seriously destroys workplace trust |
Lower-level misconduct may justify coaching, a warning or another form of progressive discipline. Repeated misconduct can become more serious if the employee received clear warnings and a fair opportunity to correct the behaviour.
A single incident can sometimes justify termination for cause, but it generally must be serious enough that continued employment is no longer reasonable.
What is serious misconduct at work?
Serious misconduct is behaviour that may fundamentally damage the employment relationship.
The employer should still consider the complete context, including:
- The employee’s position and responsibilities
- The employee’s length of service and disciplinary record
- Whether the conduct was planned or impulsive
- Whether anyone was harmed or placed at risk
- Whether the employee admitted the conduct and showed remorse
- Whether a lesser penalty could correct the problem
What is gross misconduct?
“Gross misconduct” is commonly used to describe extremely serious behaviour. However, it is not a single Canada-wide legal test that automatically determines whether an employee can be fired without severance.
Canadian employers and courts generally focus on whether the misconduct, viewed in context, was serious enough to justify termination for cause.
What Happens After an Employee Is Accused of Misconduct?
An employer may investigate before deciding whether discipline is appropriate.
The investigation may include:
- Reviewing emails, messages, video or workplace records
- Interviewing the complainant and witnesses
- Meeting with the employee who has been accused
- Reviewing workplace policies and previous warnings
- Deciding whether the allegation is supported
Employees are generally expected to cooperate with a reasonable investigation. Answer questions honestly, preserve relevant information and avoid interfering with witnesses.
You should still understand the allegation and possible consequences before attending a serious investigation meeting. A poorly worded or incomplete answer can be misunderstood or used to support discipline.
Can you be suspended during a misconduct investigation?
Possibly. An employer may temporarily remove an employee from the workplace while it investigates serious allegations.
Whether the suspension is paid, how long it lasts and whether it is reasonably justified all matter. An unauthorized unpaid or indefinite suspension could create a constructive-dismissal claim.
Learn more about being suspended from work pending an investigation in Canada.
Does your employer have to use progressive discipline?
Progressive discipline is often appropriate for conduct that can be corrected. This may include a verbal warning, written warning, final warning or another reasonable opportunity to improve.
An employer does not necessarily need to use every disciplinary step before termination. A single incident may justify immediate dismissal if it is sufficiently serious.
However, an employer should not rely on minor incidents that were never raised or tolerated for years and suddenly claim that they justify termination for cause.
Can You Be Fired for Workplace Misconduct?
Yes, but that does not always mean your employer can fire you without severance.
An employer can generally terminate a non-unionized employee without cause as long as it provides the full notice or severance required by law.
To fire you for cause and provide no common-law severance, the employer must show that the misconduct was serious enough to justify ending the employment relationship immediately.
Relevant factors can include:
- The nature and seriousness of the conduct
- Your position and level of responsibility
- Your previous employment record
- Whether you received earlier warnings
- Whether the employer tolerated similar behaviour
- Whether your explanation was considered
- Whether a lesser disciplinary response was available
Can you receive severance after being fired for misconduct?
Yes, in many cases. If the employer can’t prove just cause, the dismissal is generally treated as a termination without cause.
You may then be entitled to salary, benefits, bonuses, commissions and other regular compensation during the applicable notice period.
Depending on your age, position, length of service and the availability of similar work, severance can reach as much as 24 months’ pay.
Does misconduct automatically eliminate EI?
No. Your employer does not make the final decision about Employment Insurance.
Service Canada will examine the facts and decide whether your conduct meets its own misconduct standard. Your employer’s allegation or “Code M” on your Record of Employment does not automatically determine the outcome.
Apply promptly and provide your own explanation of what occurred.
Which provincial termination rules apply?
Your rights can depend on the province where you work.
- Termination with cause in Ontario
- Termination for cause in Alberta
- Termination with cause in British Columbia
Ontario employees should also understand the separate standard for wilful misconduct, which can affect minimum Employment Standards Act entitlements.
What Should You Do if You Are Accused of Misconduct?
How you respond can affect your job, professional reputation, severance and EI benefits.
- Don’t resign. Resigning can make it harder to pursue severance or EI.
- Ask for the allegation in writing. Understand what conduct, date and workplace rule are involved.
- Preserve relevant records. Keep emails, messages, schedules, policies and other information that supports your explanation.
- Don’t contact witnesses improperly. Avoid conduct that could be described as interference or retaliation.
- Prepare before responding. Organize the facts and avoid guessing or agreeing with inaccurate wording.
- Be honest. A misleading explanation can become more damaging than the original allegation.
- Don’t sign immediately. Review any admission, warning, resignation or settlement first.
- Contact an employment lawyer. Get advice before a serious investigation interview or termination meeting.
What if you have already been fired?
Do not accept that a termination for cause is automatically valid or that you are owed nothing.
Keep the termination letter, investigation documents, workplace policies, warnings and your Record of Employment. Do not sign a release before an employment lawyer reviews the allegation and your potential severance entitlement.
Speak With an Employment Lawyer About Workplace Misconduct
If you have been accused of misconduct, suspended during an investigation or fired for cause, you don’t have to respond to the situation alone.
The employment lawyers at Samfiru Tumarkin LLP help non-unionized employees in Ontario, Alberta and British Columbia understand their rights.
We can review the allegations, employment contract, workplace policies and disciplinary record. We can help you prepare for an investigation, communicate with your employer and determine whether the proposed discipline is justified.
If you have been fired without valid cause, we can pursue the full severance package you are owed—it can be as much as 24 months’ pay. The process doesn’t need to be overwhelming—our team can guide you through each step and deal with your employer on your behalf.