Wilful misconduct

Wilful misconduct is the Ontario ESA test for firing someone without termination or severance pay. It is narrower than common-law just cause.

Also called: wilful misconduct, disobedience or wilful neglect of duty

What wilful misconduct means

Wilful misconduct is the standard in Ontario's Employment Standards Act (ESA) for when an employer can end employment without giving notice of termination or termination pay. The full phrase in the regulation is "wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer".

It matters because it is a separate test from common-law just cause, and a harder one to meet. Ontario's Employment Standards Program says the exemption is narrower than just cause. A judge or arbitrator could find you had cause and still find you owe the ESA minimum notice or pay.

The same test also decides whether you can withhold ESA severance pay from an eligible employee.

How it works

Ontario's policy manual says all four parts must be met. First, the conduct was wilful. Second, it was misconduct, disobedience or neglect of duty. Third, it was not trivial. Fourth, you did not condone it.

Wilful usually means the employee intended the result. Reckless conduct can count if the employee knew, or ought to have known, what would happen. Poor work that is accidental or unintentional is generally not wilful, so an honest employee who simply struggles with the job will rarely meet this test, even if you have a fair reason to let them go.

For disobedience, the manual looks for a rule or order that was clear, not minor, actually communicated to the employee, and not illegal or unsafe. The employee must also have known, or ought to have known, that breaking it could lead to termination. Typical neglect-of-duty cases involve an employee who refuses to come to work, for example after being refused a holiday.

Condonation is where many employers trip. If you know about a behaviour and do nothing, the employee can reasonably think it is acceptable. If it happens again, you generally cannot rely on it to fire without notice. The fix is a clear warning that the behaviour is not acceptable and that a repeat may lead to termination.

Wilful misconduct by province

The phrase is Ontario's. Other provinces and the federal Code use their own wording, often "just cause", for when statutory notice is not owed.

Where the work is done	The rule
Federal	The Canada Labour Code uses just cause instead. Severance pay is not owed when an employee is dismissed for just cause.
Ontario	No ESA notice, termination pay or severance pay is owed only for wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned. All four parts must be met.

We have not listed the exact statutory wording for other provinces; check your province's employment standards office.

Example: The repeat no-show at an Ottawa print shop

Lena owns a 12-person print shop in Ottawa. Her press operator, Dev, asked for a Friday off during a rush order and was told no. He did not come in, and did not call. Lena gave him a written warning that said skipping a scheduled shift after a refused request was serious and that another one could lead to termination.

Two months later, Dev was refused another day off and again did not show up. This time the rule was clear, it was in writing, Dev knew the consequence, and Lena had not let the first incident slide. Lena still had a lawyer review the file before she decided anything, because the bar is high and the test depends on all the facts.

Hollis drafts the letter

Hollis drafts warning letters for Ontario and other provinces that state the expectation and the possible consequence, for you to review and send yourself.

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Employment standards: termination notice by province

Questions about wilful misconduct

What is wilful misconduct in Ontario?

It is the ESA test for ending employment without notice or termination pay. The conduct must be wilful, must be misconduct, disobedience or neglect of duty, must not be trivial, and must not have been condoned by the employer.

Is wilful misconduct the same as just cause?

No. Ontario's Employment Standards Program says the ESA exemption is narrower than common-law just cause. You can have cause and still owe the ESA minimums.

Does poor performance count as wilful misconduct?

Generally not. Ontario's guidance says poor work that is accidental or unintentional is generally not considered wilful.

What does condoned mean?

It means you knew about the behaviour and did not act on it, which suggests it was acceptable. A clear warning that a repeat could lead to termination helps avoid that.

Official sources

General information for Canadian employers, not legal advice. Rules differ by province and territory and change over time, so check with your provincial employment standards office (or the federal Labour Program if you are federally regulated) before you rely on it. See employment standards by province.

Checked against official sources on 4 November 2026.