Fired teacher gets 12 months plus LTD to age 65

concept of law and justice

A wrongfully dismissed computer studies teacher was awarded 12 months’ pay plus payments in lieu of long term disability for 11 years until age 65. This case re-affirms that employers must continue LTD coverage for wrongfully dismissed employees during statutory and common law notice periods or the organization will have to foot the bill if a former employee becomes disabled once they are no longer insured.

Remy Fernandes taught at the Mississauga Private School (MPS) for over a decade before he was fired in April 2009. His assessments in 2000 and 2001 indicated that he had exemplary conduct. None of his reviews fell below the word “good” and most were indicated as “excellent”. He was described as “highly respected and a valued member of the staff”.

In April 2009 the school said that his records of student marks were sloppy, inconsistent and incomplete even after several submission deadlines were extended. In addition, the calculation of missing assignments as zeros continued, although it was the school’s policy not to give a student zero unless assignment content was plagiarized.

MPS said Fernandes admitted to these and other allegations. Therefore they dismissed him for cause on April 17, 2009. As a result, he sued MPS for wrongful dismissal in the Ontario Superior Court. Fernandes acknowledged that his record-keeping and calculations led to incorrect interim marks for some of his students. However he denied that he committed or admitted to academic fraud.

Based on protracted testimony in the 10 day trial, Mr. Justice Gordon Lemon said it was clear that in March 2009 Fernandes had been doing an incompetent job of assessing and marking his students and recording those marks.

However, the Judge noted that in spite of inaccuracies in the relevant marks, the school still sent them to the parents and the students without further comments. He suggested that if this was such an egregious failing, the marks would not have been released.

The school referred to this as “academic fraud” but Justice Lemon said, “This was a very dramatic way of describing a few students who were marked on presentations that they had not yet given that made up only one part of the overall mark.” In addition, Fernandes eventually admitted his misconduct to the administration.

In balancing all of these considerations, the Judge therefore ruled that termination was too harsh. He said Fernandes should have received a warning and been advised that if similar problems arose again in future, he would be summarily dismissed. He agreed that a year’s pay in lieu of notice ($51,918) was appropriate plus amounts for benefit and pension contributions.

He also claimed $226,000 in lieu of long-term disability payments of $2,000/month. This represented LTD from the date he was fired at age 54 to age 65. Both his family doctor and his psychiatrist confirmed that from the date of his termination, he suffered from a major depressive disorder, mixed with anxiety neurosis, panic attacks and posttraumatic stress disorder. He was unlikely to work again.

Justice Lemon agreed that Fernandes was also entitled to LTD until age 65 because his policy ended when he was fired although his employee benefits coverage should have continued during the one year notice period. He asked counsel to submit additional evidence at a later date regarding the precise calculation of this amount.

Fernandes v. Peel Educational, 2014 ONSC 6506

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