What is willful misconduct?

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Everyone has a moment they wish they could do over. But what if that moment happens in the workplace? Depending on what occurred, you could find yourself fired without notice or severance.

With more stories popping up of people getting let go over a social media post, a bad office joke or other work-related misbehaviour, employees are becoming increasingly worried that they too might suddenly find themselves out of work. It’s called willful misconduct and it’s the only way a person can be fired without receiving any compensation.

“Willful misconduct is when the employee does something so serious that it really tears apart the employment relationship and makes it impossible to continue,” says Matthew Fisher, an employment lawyer and Partner at Toronto-based law firm Lecker & Associates. “We call it the capital punishment of employment law because it’s extremely unique for it to take place. The outcome is also severe – not only do you not have severance, you don’t even get employment insurance in many cases.”

How far is too far?

Typically, willful misconduct happens in situations of theft, fraud or violence, adds Fisher, or in cases where an employee has escalating behaviour problems. However, in the era of social media, the line between what’s acceptable workplace behaviour and what’s not has blurred, says Caroline Ursulak, who serves as counsel with Lecker & Associates.

Generally, conduct outside of work is out of an employer’s scope, but there are exceptions.

“A post or tweet that might be damaging to the company’s business or the company’s reputation could be cause for dismissal,” she explains, adding that if the post is several years old, it’s unlikely to create problems but should still be managed proactively by the employee.

“To get ahead of it, go to your boss and explain the context,” Ursulak says. “Explain what happened and apologize.”

An apology can also be a useful approach in the event that human resources contacts you to tell you a colleague has complained about a joke or comment you’ve made that may be more offensive than intended. There are two reasons to say sorry, says Ursulak: It gives you the opportunity to smooth things over with your colleague personally and it hopefully prevents any further action from being taken.

As well, “If your first reaction is to say, ‘I acknowledge I did something wrong, and I feel very badly about that and want to resolve it with you,’ the court is more likely to say this person should get severance, the workplace relationship could have been mended,” she explains.

If an investigation is launched

If your employer does accuse you of misconduct – and there are a number of other reasons why that might happen, including disregarding health and safety regulations or violating drug and alcohol policies – you’ll want to retain a lawyer. They can provide you with support and advice during an investigation.

It’s also important to remember that anyone you speak with in HR is still your employer, not a neutral third party, so be wary of signing any documents without knowing your rights first.

“You need to be respectful, you need to be truthful and you need to answer the questions in front of you,” Fisher explains. “If you find at the end that you’re asked to sign paperwork, you should not do so. You should say thank you very much and take it home to read fully first.”

As well, if your employer accuses you of willful misconduct, you don’t need to disprove anything, says Ursulak.

“It’s important to note that the employer bears the onus of proving that there has been just cause for dismissal, or willful misconduct,” she notes. “Generally, in a civil case, it’s a balance of probabilities. But in a for-cause case, because it’s the capital punishment of employment law, the courts expect more from the employer.”

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