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”.
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,  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.”
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.
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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