The applicant employer sought review of an Order to Pay termination and severance pay to three former employees, arguing they were guilty of wilful misconduct or neglect of duty.
The employer had hired a private investigator who observed the employees taking extended breaks, making personal phone calls, and watching television during working hours.
The Board found that while the employees engaged in misconduct and neglect of duty, their behaviour was not 'wilful' within the meaning of the Employment Standards Act.
The employees did not have a genuine understanding of the possible disciplinary consequences of their behaviour, largely due to the employer's failure to communicate rules or warnings effectively and the supervisor's inaction.
The application for review was dismissed, and the funds held in trust were ordered to be paid to the employees.