A private school teacher (“Mr. Fernandes”) was terminated for falsifying student grades, so he sued the school for wrongful dismissal, among other things. While Mr. Fernandes initially won the case at trial, the decision was later overturned by the Court of Appeal. The Court of Appeal found that falsifying student grades and then lying about it gave rise to a breakdown in the employment relationship and therefore warranted summary dismissal.
BACKGROUND
Mr. Fernandes was a teacher at Peel Educational & Tutorial Services Limited, a private school in Mississauga (the “School”). He had taught computer studies for different age groups in the school since January 1999 and coached volleyball. Mr. Fernandes also did information technology work for the school during the summer months.
In 2008, Mr. Fernandes received a poor performance review and was subsequently not given the position of head coach of the volleyball team. Mr. Fernandes expressed dismay with the School’s decision in this respect, but otherwise continued to fulfill his duties as a teacher.
The Principal of the School (“Mr. Edwards”) and the co-owner (“Ms. Bush”) became concerned about Mr. Fernandes’ interim grade reports, which contained numerous blanks and calculation errors. Specifically, Mr. Fernandes left many of his students’ assignment grades as blank. When a grade is left blank, it is presumed that the student failed to complete an assignment or test, and the blanks would be registered as a zero grade. Due to the high volume of unrecorded grades for Mr. Fernandes’ students, the averages for his classes were exceptionally low.
Mr. Edwards communicated the School’s concerns regarding grade submissions to Mr. Fernandes, who promised to resubmit the grades. However, Mr. Fernandes failed to rectify the issues with his grading. Following a series of resubmissions and deadline extensions, Mr. Fernandes submitted his grades for the third time. Mr. Edwards and Ms. Bush were surprised that, this time, the grades for most of the students who previously did not have grades were now nearly perfect. This aroused suspicion, particularly because some of the students showed a drastic improvement, some of whom had significant educational issues. Upon closer examination, it became clear that Mr. Fernandes had included grades in his reports for presentation that had not yet taken place and assignments that had not yet been marked.
Mr. Fernandes was given an opportunity to explain the false grades but he did not give an explanation, following which Ms. Bush and Mr. Edwards provided Mr. Fernandes with a final report which stated the following:
“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.”
Upon receiving this report, Mr. Fernandes initially denied the truth of the conclusions therein but later confessed after Mr. Edwards suggested that the students be called in to talk about the report. Mr. Fernandes was subsequently terminated for just cause and, as such, was not provided any severance or notice of termination.
In deciding whether Mr. Fernandes’ conduct amounted to just cause for dismissal, the Court of Appeal applied the test outlined by the Supreme Court of Canada in McKinley v BC Tel, 2001 SCC 38 (CanLII), [2001] 2 S.C.R. 161. The test requires asking whether the employee’s misconduct gave rise to a breakdown in the employment relationship. A breakdown can occur when the misconduct violates an essential condition of the employment contract, breaches the faith inherent to the working relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer. Courts are required to consider whether summary dismissal is proportionate to the misconduct.
The Court of Appeal cited a Supreme Court of Canada decision in Ross v New Brunswick District No. 15, 1996 CanLII 237, which described the special position of trust which teachers occupy:
“Teachers are inextricably linked to the integrity of the school system. Teachers occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions. The conduct of a teacher bears directly upon the community’s perception of the ability of the teacher to fulfill such a position of trust and influence, and upon the community’s confidence in the public school system as a whole.”
Further, the Court of Appeal acknowledged that the School could have lost its accreditation from the Ministry of Education as a result of Mr. Fernandes’ conduct. Therefore, Mr. Fernandes’ falsification of grades was fundamentally or directly inconsistent with his obligations to the School. Mr. Fernandes’ intentional falsification of grades and his inability to provide any explanation for his conduct warranted his dismissal.
OUR THOUGHTS
Terminating an employee for misconduct is unpleasant for the employee and risky for the employer. If not properly done, the employer may be liable for, among other things, damages for wrongful dismissal and legal costs. However, in some circumstances misconduct can be so egregious that the employment relationship becomes irreparably damaged. Employers need to be able to trust their employees, and further, they need to protect their interests when the employee’s conduct poses a potential threat to their business. When there’s a valid concern about employee misconduct, it is always advisable to speak with a lawyer about the option of summary dismissal.
In this case, the employee would have had a better chance of success if he provided a valid reason for his conduct when he had the opportunity. If Mr. Fernandes explained that his conduct was, for example, due to stress and the concern of losing his job and if he further communicated remorse rather than lying, he may have salvaged what was left of the relationship with his employer. By lying when confronted and failing to provide a legitimate reason for his conduct, Mr. Fernandes secured the School’s case against him for just cause dismissal.
See: Fernandes v Peel Educational & Tutorial Services Limited (Mississauga Private School), 2016 ONCA 486
