When an employee is dismissed for misconduct, an employer may point to previous workplace incidents to justify its decision. But what happens when those incidents occurred months or years earlier, and the employer knew about them but took little or no action?

In Ontario, an employer’s previous response to misconduct can affect whether it can later rely on that behaviour to justify termination for cause. An employer that knowingly overlooks misconduct may be considered to have condoned it, potentially limiting its ability to use the incident as grounds for dismissal without notice or compensation.

However, condonation does not necessarily prevent employers from considering past misconduct, particularly when additional incidents occur.

What Is Condonation in Ontario Employment Law?

Condonation occurs when an employer knows about an employee’s misconduct but responds in a manner suggesting the behaviour has been forgiven, accepted, or overlooked.

For example, an employee might repeatedly arrive late while management remains aware of the problem. If the employer allows the behaviour to continue without objection, the employee may reasonably conclude it is being tolerated. A subsequent attempt to rely solely on those incidents to justify dismissal could raise questions about condonation. However, whether condonation has occurred depends on the employer’s knowledge, actions, and surrounding circumstances.

Does Failing to Discipline an Employee Mean the Misconduct Was Accepted?

An employer’s failure to immediately discipline an employee does not automatically establish condonation. Courts distinguish between employers deliberately overlooking misconduct and those taking a reasonable time to investigate allegations.

Several factors may be relevant:

• Management’s knowledge: Whether the employer knew the full extent of the misconduct.
• Length of delay: How much time passed before disciplinary action.
• Previous responses: Whether warnings or other corrective measures were communicated.
• Continued employment: Whether the employee continued working without consequences.
• Subsequent conduct: Whether additional misconduct occurred.

For instance, an employer conducting a legitimate investigation may require several weeks to determine what happened. Such a delay does not necessarily suggest acceptance. Conversely, prolonged inaction accompanied by continued approval may support a finding of condonation.

Can a New Incident Revive Earlier Misconduct?

A new incident may allow an employer to reconsider previous misconduct through the doctrine of “cumulative cause”. Cumulative cause arises when a series of workplace incidents, considered together, may justify termination even though individual incidents might not independently meet the threshold for dismissal.

For example, an employee who previously received warnings for insubordination might engage in further inappropriate behaviour. The employer may then rely on the disciplinary history to demonstrate a continuing pattern. However, courts must still assess the seriousness of the conduct, the employee’s circumstances, and whether dismissal was proportionate.

The Role of Progressive Discipline and Workplace Warnings

An employer’s approach to progressive discipline can influence whether previous misconduct remains relevant to a subsequent termination. Progressive discipline generally involves escalating corrective measures, including verbal warnings, written warnings, performance improvement plans, and suspensions. These measures communicate that particular conduct is unacceptable and that continued problems may lead to more serious consequences.

Clear warnings may distinguish an employer’s decision to provide another opportunity from an unconditional acceptance of misconduct. However, progressive discipline is not mandatory in every case, as sufficiently serious misconduct may justify immediate dismissal depending on the circumstances.

What If the Employer Previously Praised or Promoted the Employee?

An employee’s treatment following an alleged incident may be relevant when assessing condonation. Suppose an employer becomes aware of misconduct but subsequently promotes the employee, increases their compensation, or provides favourable performance evaluations without raising concerns. These actions may suggest the employer did not consider the behaviour sufficiently serious to warrant dismissal.

However, promotions, raises, and positive evaluations do not automatically erase misconduct. Courts consider the circumstances surrounding those decisions, including whether the individuals responsible had complete knowledge of the allegations.

Can an Employer Discover Old Misconduct After Termination?

Under the doctrine of after-acquired cause, an employer may sometimes rely on previously unknown misconduct discovered after an employee’s dismissal to establish that termination for cause was justified.

For example, an employer might terminate an employee without cause and subsequently discover evidence of serious dishonesty during the employment relationship. Depending on the circumstances, this information could affect the employee’s termination entitlements.

This differs from condonation because an employer generally cannot knowingly forgive misconduct it was unaware of. However, complications may arise where management possessed partial knowledge or failed to investigate earlier allegations.

Does Condonation Affect Severance Entitlements?

Whether an employer establishes just cause can significantly affect an employee’s rights following dismissal. Under Ontario common law, an employer that establishes just cause may dismiss an employee without providing reasonable notice or compensation in lieu. However, where allegations do not establish just cause, the employee may have grounds for a wrongful dismissal claim.

Ontario’s Employment Standards Act, 2000 establishes separate minimum termination entitlements. Its exemption for serious, non-trivial and uncondoned wilful misconduct, disobedience, or neglect of duty is narrower than common law just cause. Consequently, an employee dismissed for cause under the common law may still qualify for statutory entitlements if the employer cannot establish the statutory exemption.

What Evidence Matters in Disputes Involving Old Misconduct?

Disputes involving previously known misconduct frequently depend on documentary evidence and the chronology of events. Relevant records may include disciplinary letters, workplace investigation findings, emails, performance evaluations, personnel files, and communications between management and the employee. Internal records showing how an employer responded to earlier allegations may also help establish whether misconduct was forgiven or whether future consequences remained under consideration.

Where an employee challenges dismissal for cause, this evidence may influence the assessment of termination packages and applicable employment standards protections.

Why an Employer’s Response to Misconduct Matters

Ontario employment law recognizes that misconduct must be assessed within the broader employment relationship. An employer’s prior knowledge, disciplinary decisions, and communications can be as relevant as the allegations themselves.

Although condonation may limit an employer’s ability to rely exclusively on previously forgiven misconduct, subsequent incidents can bring earlier behaviour back into consideration. The distinction between condonation, cumulative cause, and after-acquired cause can therefore become central to a termination dispute.

Ultimately, whether historical misconduct justifies dismissal depends on the full factual context, including the seriousness of the employee’s conduct, the employer’s response, and the proportionality of termination.

Concerns About Misconduct & Termination in Toronto? Contact Haynes Law Firm

At Haynes Law Firm, we represent employees and employers in disputes involving workplace misconduct, termination for cause, wrongful dismissal, and severance entitlements. Led by leading employment lawyer Paulette Haynes, we assist Ontario employees facing dismissal based on past misconduct, as well as employers navigating workplace investigations, progressive discipline, and employee terminations.

Whether you are challenging a dismissal for cause or assessing potential termination liability, contact Haynes Law Firm online or call (416) 593-2731 to discuss your options.