In a recent decision, Render v. ThyssenKrupp Elevator (Canada) Limited, the Ontario Court of Appeal upheld the just cause termination of an employee for a single incident of sexual misconduct, but found that this did not rise to the level of “willful misconduct” required to disentitle the employee to his minimum requirements under the Employment Standards Act (“ESA”).

The Facts

The Plaintiff, Mr. Render, was a 30-year employee of the Defendant, ThyssenKrup Elevator Ltd. (“ThyssenKrup”), working in a management role. The evidence on the record was that the office environment at ThyssenKrup was “very social” and inappropriate jokes and comments were the norm.  Mr. Render was terminated for cause after slapping a female colleague, Ms. Vieira, on the buttocks and putting his face near her breasts in front of a room full of male colleagues. Ms. Vieira was upset and humiliated by the incident and reported it to Human Resources. Mr. Render was terminated shortly thereafter without severance, termination or vacation pay.

Trial Decision – Conduct Amounted to Just Cause for Dismissal

The trial judge considered numerous factors in determining whether the incident between Mr. Render and Ms. Vieira amounted to just cause for dismissal. The fact that Mr. Render was a supervisor and in a position of authority over Ms. Vieira and that ThyssenKrup had introduced a zero-tolerance harassment and discrimination policy shortly before the incident were found to be aggravating factors. Further, the evidence demonstrated Mr. Render did not appreciate the seriousness of his actions and did not show remorse or understanding. The judge considered the fact that Mr. Render had no discipline or performance issues of any kind over his 30-year career to be a mitigating factor.

The trial judge ultimately concluded that the two aspects of his conduct taken together, being the slap and the lack of understanding or remorse, were irreconcilable with sustaining his employment and termination was proportional with the severity of the conduct. Mr. Render appealed the trial decision.

Appeal Decision – Incident Constituted Just Cause but NOT Willful Misconduct

The Court of Appeal agreed with the lower court that Mr. Render’s conduct amounted to just cause for dismissal at common law. However, the Court of Appeal found that the court below did err in failing to award Mr. Render his entitlements under the ESA, as his conduct did not amount to “willful misconduct” required under statute to deprive him of his entitlements to termination pay.

Statutory “willful misconduct” has been found to require a higher standard than just cause for dismissal at common law, and the Court of Appeal wrote that careless or inadvertent conduct does not meet this higher standard, and the conduct must be “preplanned”. In applying the law of willful misconduct to Mr. Render’s behaviour, the Court of Appeal reasoned that the trial judge had found that the touching was not accidental but had made no finding that the conduct was preplanned. Rather, Mr. Render’s conduct was done in the “heat of the moment”.

Though his actions warranted dismissal for cause, the Court of Appeal concluded that this was not the type of conduct intended by the legislature to deprive an employee of statutory benefits, and as a result, Mr. Render was awarded 8 weeks’ termination pay under the ESA.

Takeaways for Employers

• Clear policies and procedures on harassment and discrimination in the workplace are key in asserting boundaries and justifying disciplinary responses to employee misconduct.
• Work environments where seemingly benign jokes and interactions are normalized can quickly escalate to serious incidents of harassment, discrimination or violence, ultimately harming employees and businesses.
• A single incident of sexual misconduct can justify dismissal for cause, signaling a clear denunciation of this type of conduct by the law and the courts.
• Conversely, even in the face of unacceptable sexual harassment, the courts may still find that the onerous hurdle of willful misconduct has not been overcome, and employers may still be liable for ESA minimum entitlements when the conduct is not “preplanned”.

The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyers by email or telephone.