Can Swearing at Your Boss Get You Fired for Cause? Understanding Just Cause vs. Wilful Misconduct in Ontario Wrongful Dismissal Claims
In an important employment law decision from the Ontario Superior Court of Justice, the case of 2551965 Ontario Ltd. v. Warkentin provides a powerful reminder that workplace misconduct — particularly involving threats or abusive language — can justify dismissal without notice. The ruling draws a critical distinction between just cause for dismissal under common law and wilful misconduct under Ontario’s Employment Standards Act (ESA), which affects an employee’s right to termination pay and severance.
If you are an employee facing allegations of misconduct or an employer unsure of how to handle inappropriate behaviour in the workplace, this case underscores the value of consulting a Toronto employment lawyer for a proper employment law consultation.
Two Key Legal Standards in Ontario Terminations
When an employee is dismissed for misconduct in Ontario, two separate legal frameworks may apply:
1. Just Cause at Common Law
If an employer proves just cause, the employee is not entitled to reasonable notice or common law severance. However, they may still be entitled to statutory entitlements under the ESA unless wilful misconduct is also established.
2. Wilful Misconduct Under the ESA
According to O. Reg. 288/01: Termination and Severance of Employment under the ESA, an employee is disentitled to both statutory notice and severance if their conduct amounts to:
“wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.”
This threshold is higher than “just cause.” The conduct must be deliberate, serious, and intentional — a key distinction that an experienced employment contract review lawyer or wrongful dismissal lawyer can help clarify. The courts have described an employee’s misconduct as “being bad on purpose,” which is much harder for an employer to prove.
Case Background: Mr. Warkentin’s Behaviour and Termination
The case involves Harold Warkentin, a real estate broker and founder of Cabin Country Realty Ltd. After selling the business to 2551965 Ontario Limited in 2016, he continued working for the company. His employment was terminated in late 2017 following multiple incidents of alleged misconduct.
The employer cited several reasons for his dismissal, including Mr. Warkentin engaged in a range of inappropriate behaviors, including poaching leads from Cabin, submitting incomplete client forms, instructing clients to pay for appraisals upfront, and demonstrating a careless attitude. He also wrote notes in the company’s internal computer system—which is accessible to all employees—that contained swearing and insults directed at the owner, Mr. Chaze, whom he called “greedy” and a “snivelling idiot.”
Additionally, during a confrontation triggered by Mr. Warkentin’s discovery that an inaccurate listing he prepared would no longer be published, he swore at Mr. Chaze and threatened to physically assault him. Furthermore, Mr. Warkentin facilitated a sale through another brokerage by offering his services to them without charge and misleading a former client into believing that Cabin was managing the transaction. His actions ultimately caused the commission from the sale to be paid to the other brokerage.
These actions led to a lawsuit against Mr. Warkentin for breach of contract and interference with business relationships. In response, he filed a wrongful dismissal claim, arguing that his termination was unjustified and he was entitled to a severance package.
The Court’s Analysis: Did the Behaviour Justify Dismissal?
The Court reviewed each of the employer’s allegations to determine whether they met the legal standards of just causeand/or wilful misconduct.
A. Just Cause – Met for Most, But Not All Incidents
The judge determined that three of the four reasons provided by the employer justified just cause termination:
1. Offensive Notes in the Internal Database
The Court determined that the remarks left in the company’s shared database were “unacceptable, unprofessional, and inappropriate,” constituting serious misconduct. Given that the database was accessible to all staff members, the Court concluded that these notes caused a fundamental breakdown in the working relationship, making it impossible for the employment to continue.
2. Threatening and Swearing at His Employer
Secondly, the Court emphasized that there must be “zero tolerance for abusive language and threats of violence in the workplace,” finding Mr. Warkentin’s confrontation with Mr. Chaze to be deeply inappropriate. Although the Court acknowledged that Mr. Warkentin had formerly owned Cabin and had mentored both Mr. Chaze and the other owner, it clarified that these circumstances did not alter the legal standard applied to him. Instead, both the use of profanity and threats of violence individually justified termination for just cause.
3. Assisting a Competing Brokerage
Lastly, the Court concluded that Mr. Warkentin’s act of misleading a client to engage another brokerage violated his duty of loyalty to Cabin and caused financial harm. The Court emphasized that his conduct was “completely inconsistent with any reasonable expectations” of employee behaviour and was incompatible with maintaining the employment relationship.
Although the Court noted that Mr. Warkentin displayed a general attitude of “dismissiveness” and indifference toward his employer and role, it determined that these attitudes alone did not constitute just cause for termination.
B. Wilful Misconduct – A Stricter Test
The judge also analyzed whether the conduct met the higher standard of wilful misconduct under the ESA. Only two actions satisfied this elevated threshold:
1. Verbal Abuse and Threats
The Court identified Mr. Warkentin’s confrontation with Mr. Chaze as the first instance of wilful misconduct. Although Mr. Warkentin’s outburst was triggered by a decision he opposed, the Court found that he was not provoked. He consciously chose to drive to the workplace and deliberately sought out Mr. Chaze. Upon locating him, Mr. Warkentin opted to confront Mr. Chaze publicly, in front of his family, and used language he was aware was inappropriate for a professional setting. The Court emphasized that “aggressive profanity,” including the use of “F-bombs,” is unacceptable in the “context of a small, intimate workplace” and cannot be tolerated. Furthermore, the Court stated that Mr. Warkentin “had enough time to reflect on the situation, compose himself, and approach Chaze in a professional manner, but he elected not to.” These deliberate decisions rendered his behaviour sufficiently serious to qualify as wilful misconduct.
2. Undermining the Employer for Personal Spite
The Court also determined that Mr. Warkentin’s conduct related to the real estate sale amounted to wilful misconduct and wilful neglect of duty. This was because he acted out of “pure spite” toward Cabin after being displeased about losing his leadership role. The Court emphasized that there was “no legitimate business reason” for him to help the competing brokerage finalize the sale or to let them receive the commission. Additionally, Mr. Warkentin was fully aware of his responsibilities as a real estate agent but consciously chose to disregard those professional standards.
Legal Outcome: Both Claims Dismissed
Having determined that Mr. Warkentin’s conduct met both standards, the Court:
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Dismissed his wrongful dismissal claim, ruling that he was terminated for just cause and was not entitled to either statutory or common law severance.
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Dismissed the employer’s lawsuit as well, holding that the non-competition clause in his contract was too broad and therefore unenforceable.
Lessons for Employers and Employees
This case carries important implications for both parties in the employment relationship. Whether you’re hiring or being hired, a severance package review with an employment lawyer or an employment contract review lawyer in Toronto can help you avoid costly mistakes and legal uncertainty.
For Employers
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Ensure that employee misconduct is well-documented and supported by clear evidence.
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Recognize that just cause and wilful misconduct are not the same — and only the latter removes ESA entitlements.
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Be cautious when including non-compete clauses, as overly broad restrictions may be struck down by the courts.
Before proceeding with a termination for cause, employers are strongly advised to consult an employment lawyer in Toronto to evaluate legal risks.
For Employees
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Understand that aggressive behaviour and insubordination, even in stressful moments, can result in a complete loss of termination rights.
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If you are facing a dismissal or disciplinary investigation, reach out to a constructive dismissal lawyer or wrongful dismissal lawyer to protect your rights.
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Never assume your employment contract protects you without legal advice — contracts can limit or override your common law entitlements.
Final Thoughts: Seek Legal Advice Early
The Warkentin case reinforces the importance of professionalism in the workplace and clarity in employment relationships. It also serves as a warning: when emotions take over, and conduct crosses into hostile or deceptive territory, the legal consequences can be serious and costly.
Whether you are an employee who has been dismissed or an employer managing a difficult situation, seeking guidance from a Toronto employment lawyer can make all the difference. An early severance package review with an employment lawyer or a proactive employment contract review may help you avoid unnecessary litigation — and protect your rights and reputation.
If you are dealing with a workplace dispute or termination, contact an experienced employment lawyer in Toronto today to discuss your options.
For many employers, termination of employment is a difficult and confusing time, especially when it comes to drafting severance packages. Therefore, in a wrongful termination of employment, it is important for employers to consult with an experienced Ontario employment lawyer for a severance package review to understand the impact of wrongful dismissal on pension plans. If you are an employer or employee needing to speak with an experienced Ontario wrongful dismissal lawyer to discuss your options and next steps on how to deal with workplace issues, call Bune Law, employment law firm in Toronto. You will review and get guidance on your severance package before you agree to sign any termination documents, and help ensure that your severance package is fair and reasonable.