Wilful Misconduct in Ontario: The Higher Bar Your Employer Must Clear Before You Lose Your Severance

“Wilful misconduct” is the Employment Standards Act test that determines whether an employee keeps their statutory termination pay after a for-cause termination. This is a higher and separate standard than just cause. Under Ontario employment law, an employer must establish four things: misconduct occurred, it was wilful, it was not trivial, and it had not been condoned. If any element is missing, statutory termination pay may still be owed.

What Does “Wilful Misconduct” Mean in Ontario?

“Wilful misconduct” — sometimes spelled “willful misconduct” — is not a phrase your employer gets to define. It comes from the Employment Standards Act (ESA) and its regulations, and it identifies circumstances in which an employee can be denied statutory termination pay. 

Ontario Regulation 288/01 states these circumstances as:

“An employee who has been guilty of wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and has not been condoned by the employer.”

These words form the basis of the four-part willful misconduct test:

1. There was misconduct, disobedience, or neglect of duty.
2. It was wilful — meaning deliberate, rather than accidental or involuntary.
3. It was not trivial.
4. It was not condoned by the employer.

The employer has to establish all four on a balance of probabilities. Miss one, and the ESA exemption does not apply, meaning statutory termination pay may still be owed.

Is Wilful Misconduct the Same as Just Cause?

No. Just cause and wilful misconduct are different legal tests. Just cause is the common-law question of whether an employee’s misconduct was serious enough to justify ending the employment relationship. Wilful misconduct, by contrast, is the narrower ESA question of whether the employee deliberately engaged in misconduct, disobedience or wilful neglect that was not trivial and had not been condoned.

That distinction matters because an employer can establish just cause for dismissal without establishing wilful misconduct under the ESA. In other words, clearing the common-law just cause test does not automatically mean the employer has cleared the statutory wilful misconduct test.

This concerns your statutory minimum entitlements under the ESA, which is the floor of termination protections established by legislation. If you were terminated for cause, the wording of the letter is not the end of the analysis — it is the beginning of one.

How Do Ontario Courts Decide Whether Conduct Was “Wilful”?

This is where the distinction matters most. “Wilful” is not a synonym for “serious” or “bad.” It goes to your state of mind. To lose your statutory entitlements, the conduct must have been deliberate rather than merely careless, thoughtless or inadvertent. The consequences of what you did may be serious, but serious consequences do not, by themselves, make the conduct wilful.

In practical terms, two things have to be true for the conduct to qualify as “wilful”:

• You deliberately did the act — it was purposeful, rather than accidental.
• You knew it was wrong when you did it.

That means carelessness, incompetence, poor judgment and a genuine mistake do not automatically amount to wilful misconduct. You may have made a serious error or caused significant damage without deliberately doing something you knew was wrong. The size of the consequence does not convert a mistake into intentional wrongdoing.

The second part is particularly important. If a workplace rule was never communicated to you, was enforced inconsistently, or was routinely ignored by others on your shift, those circumstances may be relevant to whether you actually knew you were doing something wrong.

A useful way to frame the question is: Was what I did bad, or did I do it on purpose knowing it was against the rules? Those questions can produce very different answers.

What Makes Misconduct “Not Trivial”?

Even deliberate misconduct does not necessarily cost you your statutory termination pay. The regulation makes “not trivial” a separate requirement, meaning conduct must clear this hurdle in addition to being wilful. In other words, an act can be deliberate and still be too minor to trigger the ESA exemption.

“Trivial” is not defined in the regulation, so the word takes its ordinary meaning: something minor, insignificant or lacking sufficient seriousness. Whether conduct is trivial has to be assessed in context, including the nature of the job and the circumstances of the workplace. The question, therefore, is whether the conduct was substantial enough to justify removing a statutory minimum entitlement.

This element tends to receive less attention in reported cases because most conduct employers rely on is not particularly minor. It may matter more where an employer relies on a small technical violation or a series of relatively minor infractions.

What Does It Mean If Your Employer “Condoned” the Conduct?

If your employer knew what you were doing and allowed it to continue, they generally cannot reach back for that conduct later. The regulation specifically requires that the misconduct “has not been condoned by the employer.” Condonation is therefore a separate requirement that can prevent an employer from relying on otherwise alleged misconduct to deny your statutory termination pay.

Condonation may arise where:

• The conduct continued for months and went unaddressed.
• A manager knew about the conduct but did nothing.
• Everyone on the team did the same thing without being disciplined.
• You received a raise, bonus, or promotion after the employer knew about the conduct.
• Your employer waited weeks after discovering the conduct before taking action.

The timing is especially important when proving or disproving condonation. A significant delay between the employer learning about the conduct and acting on it may support an argument that the employer accepted or tolerated the conduct.

Ultimately, condonation rests on the evidence. Keep emails, schedules, performance reviews, messages and other records that show what your employer knew and when they knew it. An employer that has a workplace discipline process and did not use it at the time may have a harder time arguing that the conduct later justified withholding your statutory pay.

What Kind of Conduct Actually Meets the Wilful Misconduct Standard?

The clearest recent Ontario example of wilful misconduct is a time-theft case. In Abbasbayli v. Fiera Foods Company, an employee and a colleague punched each other’s timecards. The conduct was captured on the time-clock camera, and when the employee was asked to explain what had happened, he did not explain. The court found that the conduct met the wilful misconduct standard, meaning the employee was not entitled to statutory termination pay.

The facts that mattered are useful to compare against your own situation where your employer alleged wilful misconduct. In Abbasbayli, the conduct was repeated, plainly deliberate, and not disputed when the employee was confronted. 

However, conduct does not necessarily meet the standard simply because it caused serious harm or violated a workplace rule. A one-off mistake made under pressure, an unintended act with serious consequences, or conduct based on a rule that was never properly communicated may point in the other direction. The Ministry’s guidance specifically notes that accidental or involuntary conduct will generally not be wilful, while also recognizing that reckless conduct can qualify where the employee knew or ought to have known its likely consequences.

The further your facts sit from planned, repeated, and deliberate conduct, the harder it may be for your employer to argue for wilful misconduct.

Who Decides Whether Your Conduct Was Wilful Misconduct?

Simply put, your employer decides what to put in your termination letter, but they do not decide whether it is true. A label in a termination letter like “just cause” or “wilful misconduct” is an allegation, not a true statement. Whether your conduct actually meets the statutory wilful misconduct standard is ultimately a question for an adjudicator.

The burden is on your employer to establish that the requirements of the ESA exemption are met. You do not have to prove that you were innocent of misconduct simply because your employer says you were fired for wilful misconduct.

If you believe the allegation is wrong, there are generally two possible routes: an employment standards claim through the Ministry or a civil claim in court. These routes address different legal entitlements and have different procedures and timelines. You generally cannot pursue both routes for the same entitlement, so get legal advice before choosing between them. That decision can be difficult to undo.

In the meantime, remember that your termination letter does not inherently settle the issue. Keep a record of emails, messages, schedules, policies, performance reviews, and other records showing what happened, what your employer knew, and when. Avoid signing a release while the allegation remains unresolved.

Before you accept that the label on your termination letter is the final word, it is worth finding out whether your employer has actually met the wilful misconduct test. The distinction between just cause and wilful misconduct can affect whether you are still entitled to statutory termination pay.

Our Ontario employment lawyers can advise you about your termination, the evidence your employer relied on, and your options before you sign a release or choose a legal route. Book your consultation with Roberts & Obradovic Employment Law today.

Frequently Asked Questions About Wilful Misconduct

If you have been terminated for cause and your employer says you committed wilful misconduct, do not assume that label means you have lost your statutory termination pay. The legal test is narrower than just cause, and your employer must establish every part of it.

At Roberts & Obradovic Employment Law, we can review the circumstances of your termination, assess whether the ESA standard has actually been met, and explain what options may be available to you. Talk to an employment lawyer before signing a release or deciding how to proceed.