Mark Render (Render), a manager with 30 years of service, was dismissed by his employer for just cause after slapping the buttocks of a female colleague (Complainant) at the workplace. Render's wrongful dismissal action against the employer was dismissed at trial, but his appeal of that ruling was partially successful. In Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, the Ontario Court of Appeal (Court) condemned inappropriate workplace misconduct between Render and a co-worker, but found that his conduct was not sufficient to constitute "wilful misconduct".
TRIAL DECISION
Render was employed for 30 years with ThyssenKrupp Elevator
prior to termination. Based on the lower court decision, the office
had a "friendly and joking" atmosphere, which Render
claimed he fostered to reduce stress. The Complainant, who held the
position of accounts manager, and Render also had a history of
engaging in jokes and banter.
On February 28, 2014, Render and six other employees were present
in one of the offices, engaging in conversation and joking around.
One such joke was made by the Complainant about Render's
height, a joke which she had made several times in the past. Render
then told everyone to leave the room as he was about to have a
meeting with another employee. He claimed at trial that he then
made a sweeping gesture with his right hand and, according to his
testimony, accidentally touched the Complainant's
buttocks.
The Complainant gasped at Render's touch and said she could
not believe he had done it. The Complainant subsequently reported
the incident, and following a workplace investigation, the employer
decided to terminate Render's employment with just cause on the
basis that he had touched the Complainant on the buttocks. The
company did not pay any severance or termination pay.
There were discrepancies in the witness testimony at trial –
including whether Render's conduct was a tap or a slap, whether
it was intentional or accidental, and whether it was sexual in
nature or not. The trial judge ultimately accepted that there was a
slap, that it was sufficient to cause the Complainant to be shocked
and upset, and that the slap was not accidental.
The trial judge found that the purpose of the slap was the same
regardless of whether it was sexual in nature or not, which was to
"assert dominance over [the Complainant] and to demean and
embarrass her in front of her colleagues." The judge ruled
that the slap represented an attack on [the Complainant's]
dignity and self-respect, which is "unacceptable in
today's workplace."
In determining whether there was just cause, the trial judge
reviewed the proportionality test set out by the Supreme Court of
Canada in McKinley v. BC Tel, 2001 SCC 38, [2001] 2
S.C.R., 161, and ultimately found that the termination of
Render's employment was a proportionate response to the
incident. He noted several exacerbating factors, including the fact
that Render was in a position of authority over the Complainant as
a supervisor, and that the employer had communicated the
company's Anti-Harassment and Anti-Discrimination policies to
Render just days before the incident. These policies stated that
sexual harassment could arise from a single incident, including
unwelcome touching, and that the consequences of this kind of
conduct could include termination of employment. The judge also
noted that Render did not take responsibility for his actions,
failed to understand the seriousness of the incident, and lacked
sufficient regret.
The trial judge did not accept potential mitigating factors, such
as the fact that Render had a 30-year clean record with the
company, or the fact that the office had a general
"joking" culture. The trial judge cited the Ontario Court
of Appeal's decision in Bannister v. General Motors of Canada
Ltd. (1998), 40 O.R. (3d) 577 (C.A.) when
rejecting the latter mitigating factor, which stated, "No
female should be called upon to defend her dignity or to resist or
turn away from unwanted approaches or comments which are gender or
sexually oriented. It is an abuse of power for a supervisor to
condone or participate in such conduct."
APPEAL
On appeal, Render argued among other things that there was no
just cause to terminate and that, even if there was cause for
termination under the common law, he nevertheless should have been
awarded the minimum termination entitlements under
the Employment Standards Act,
2000 (ESA).
The Court ultimately dismissed the appeal regarding Render's
termination for cause under the common law. It rejected
Render's argument that the employer could have instituted other
disciplinary measures instead of terminating his employment. The
Court affirmed that the key question in a case of just cause
dismissal is "whether an employee has engaged in misconduct
that is incompatible with the fundamental terms of the employment
relationship" (cited from Dowling v. Ontario (Workplace Safety &
Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont.
C.A.)). The Court additionally stated, "when things go too
far, as they did in this case, the legal consequences can be
severe. Every workplace should be based on mutual respect among
co-workers."
However, the Court found that Render was nonetheless entitled to
the minimum statutory termination pay under the ESA.
The Court reiterated the differing standards between just cause for
dismissal under the common law, and the exceptions set out in
Regulation 288/01 of the ESA which will
disentitle an employee to minimum statutory termination and
severance payments. Regulation 288/01 provides that an employee is
not entitled to ESA termination or severance pay
if the employee "has been guilty of wilful misconduct,
disobedience or wilful neglect of duty". The Court affirmed
that: "[w]ilful misconduct involves an assessment of
subjective intent, almost akin to a special intent in criminal law.
It will be found in a narrower cadre of cases: cases of wilful
misconduct will almost inevitably meet the test for just cause but
the reverse is not the case."
As the trial judge did not find that Render's conduct was
"preplanned", the Court ruled that Render's actions
did not rise to the level of wilful misconduct. The Court found
that Render's conduct was in the "heat of the moment"
in reaction to the Complainant's joke about his height. While
Render's misconduct warranted dismissal for cause, the Court
awarded him eight weeks of ESA termination pay.
Render also requested that the Court set aside the award of costs
at trial and denial of his punitive damages claim, which he claimed
were due to the employer's litigation misconduct. The Court
agreed that the litigation misconduct warranted overturning the
award of costs in favour of the employer at trial, but declined to
award punitive damages.
IMPLICATIONS
This case confirms that there can be just cause for termination
under the common law, but employees may nonetheless be entitled to
receive ESA termination and severance pay. The
fact that the Court went on to find that "wilful
misconduct" means that the conduct must be
"preplanned" will likely be of concern to employers. The
Court did not explain what degree of preplanning is necessary.
However, it appears that this decision may open the door for
employees to argue that they are deserving of termination and
severance payments no matter how egregious their "heat of the
moment" conduct may have been.
On the other hand, the case also demonstrates the importance of
implementing strong anti-harassment and anti-discrimination
policies, and training employees on such policies and the
consequences for any breach. In those circumstances, employers may
be in a position to demonstrate that there is cause to terminate
under the common law for one material breach, even where the
employee at issue has very long service and an otherwise
unblemished employment record.
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