“Non-accidental” touching of female employee not enough to withhold termination pay: Ontario Court
By John Hyde
The Ontario Court of Appeal (ONCA) upheld the just cause termination of an employee for a single incident of sexual misconduct, according to a recent decision from the ONCA in Render v. ThyssenKrupp Elevator (Canada) Limited [“Render”]. However, the ONCA stated that the employee’s conduct did not rise to the level of “wilful misconduct” and, as such, the employee was still entitled to his minimum statutory rights under the Employment Standards Act, 2000 (ESA).
This decision is consistent with a recent string of court decisions which confirm that the common law (judge-made law) standard of “cause” may not be enough to deny an employee their minimum entitlements under the ESA upon termination – even if the employee has engaged in serious misconduct.
The employee, Mr. Render, was the operations manager for approximately 30 years before being dismissed for cause by his employer, ThyssenKrupp Elevator (TKE). The employee had no discipline or performance issues over his 30-year career.
The single incident involved Mr. Render and a female co-worker, Ms. Linda Vieira, who alleged that Mr. Render put his face close to her breasts and slapped her buttocks. The employer conducted a workplace sexual harassment investigation, and made the decision to terminate Mr. Render’s employment, refusing to provide him with any financial severance package compensation. As a result, Mr. Render sued TKE for wrongful dismissal.
It is important to note that TKE’s office had an informal atmosphere, where inappropriate jokes and banter were commonplace. Mr. Render and Ms. Vieira would routinely engage in banter.
Issues on Appeal
On appeal, Mr. Render’s counsel made some key arguments, including the following:
1. Rather than fire Mr. Render for just cause, TKE should have considered the office environment as a mitigating factor and lessened the punishment to something less severe than termination.
2. Even if there was “just cause” to terminate Mr. Render’s employment, he should still be entitled to statutory termination pay under the ESA because the threshold to disentitle an employee from statutory payments must rise to the level of “wilful misconduct”, a higher standard than “just cause”. It was argued that TKE did not meet the statutory definition of “wilful misconduct”, which states that the employee must be “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.”
The ONCA dismissed Mr. Render’s argument that TKE’s office environment should be considered a mitigating factor, stating that “although some may perceive it to be benign and all in good fun, those on the receiving end of personal ‘jokes’ do not view it that way.”
Though Mr. Render’s actions warranted a dismissal for just cause, the ONCA 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. Further, the ONCA stated that Mr. Render’s actions, while not accidental, occurred in the “heat of the moment” and were not premeditated. Wilful misconduct requires an employer to consider an individual’s mindset and their subjective prior intention to commit a wrongful act, almost akin to a special intent in criminal law.
For employers, this decision is a good reminder about the importance of establishing and following workplace policies with clear procedures for responding to complaints of workplace misconduct and harassment. An overly casual workplace atmosphere will rarely be an excuse for inappropriate behaviour among colleagues. Employers are responsible to take reasonable steps to ensure a safe and respectful workplace.
Notably, an employee terminated for just cause may still be entitled to receive statutory termination payments under the ESA. Even in the face of unacceptable sexual harassment, the courts may still find that the onerous hurdle of declaring an employee’s behaviour as “wilful misconduct” has not been overcome. To be disentitled from statutory entitlements, an employee must do something deliberately, knowing he or she is doing something wrong.
Employers seeking to terminate employees for “just cause” should consult with experienced employment counsel to assess whether statutory payments would still apply.
John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.
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