A Single Incident of Sexual Harassment can be Cause for Termination
Render v. Thyssenkrupp Elevator (Canada) Limited, 2022 ONCA 310
Ontario’s Court of Appeal recently confirmed that a long tenured employee can be terminated for cause following a single incident of sexual harassment. The decision also provides insight into the different standards required to establish cause for termination at common law and wilful misconduct pursuant to the Employment Standards Act.
The Facts
In Render v. Thyssenkrupp, Mr. Render, a long tenured (30+ years) managerial employee with no prior disciplinary record had been terminated for cause, and without notice, following a workplace incident that occurred in 2014. The Incident involved Mr. Render putting his face close to a female colleague’s breasts for 2-3 seconds, then slapping her on the buttocks and saying “good game.” The incident occurred in front of several male colleagues. The female colleague expressed immediate discomfort with respect to the physical contact and Mr. Render reminded her that she had previously punched him on the arm. She explained that she felt uncomfortable because he had touched her in a private area.
After the incident, Mr. Render had a conversation with several male colleagues behind closed doors in which he was asked how it felt to touch his colleague on her buttocks, and he replied, “you can shake my hand for 10 bucks.”
The female colleague made a complaint to the employer and the incident was investigated. Mr. Render was subsequently terminated for cause.
The Trial Decision
The trial judge upheld the termination for cause and found that the slap constituted serious and unacceptable conduct and was an act that attacked the female colleague’s dignity and self respect. The trial judge also found that although Mr. Render was not the direct supervisor of the female colleague, his managerial position placed him in a position of authority over her. Further, Mr. Render had been trained on the company’s Anti-Harassment Policy approximately one week before the incident. The judge also found that he did not appreciate the seriousness of his actions.
The Court of Appeal Decision
Mr. Render appealed two findings of fact (that the slap was not accidental and that his remorse was ungenuine) and two points of law (that the employer had cause for termination, and that he was not entitled to notice of termination). The Court of Appeal deferred to the lower court on the findings of fact and upheld the legal finding that the employer had cause to terminate Mr. Render’s employment for cause. However, Mr. Render was successful in arguing that he was entitled to notice pursuant to the ESA.
No Willful Misconduct
The Court of Appeal cited s. 2(1) 3 of Regulation 288/01 to the ESA, which establishes that an employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer is disentitled to notice of termination or pay in lieu thereof under the ESA. The decision makes clear that the standard for establishing such misconduct is a higher standard than that required to establish cause at common law. The Court of Appeal found that because the incident occurred in the “heat of the moment” and was not preplanned, it did not amount to the type of conduct that would disentitle him to his statutory minimums for notice. The conduct required to establish wilful misconduct must be more than serious; it must be careless, thoughtless, heedless, and there must be intentional, deliberate or purposeful engagement in the conduct.
Take Aways
Wilful misconduct requires a subjective standard to be met, establishing that the perpetrator knew the conduct was wrong and did it anyway, whereas cause at common law applies a contextualized objective standard wherein the perpetrator knew, or ought to have known in the circumstances that the conduct was inappropriate.
A single incident of sexual harassment can constitute cause, reaffirming the seriousness of sexual harassment in the workplace.