April 24th, 2022
Slapping a woman’s buttocks in the workplace without remorse can be just cause for termination, the Ontario Court of Appeal recently held, but, oddly, in this case the dismissed employee was awarded termination pay under the Employment Standards Act.
In Render v ThyssenKrupp Elevator (Canada) Limited, a manager, Mark Render, was terminated for cause largely because he slapped a female co-worker on her buttocks without remorse. He did it in the presence of other male co-workers. The slap arose in the context of a joke the female co-worker made about Render’s height. Render worked at ThyssenKrupp Elevator and its predecessor company for 30 years.
Render sued his former employer for wrongful dismissal. At trial, Justice Chalmers rejected Render’s account that the slap was accidental. Render admitted at trial that after the slap he told male co-workers, “for 10 bucks you can shake my hand.” The slap in front of other male workers was very serious and unacceptable, the judge held. Without qualifying whether that act was sexual harassment, sexual assault, or a common assault, the judge concluded that the purpose of the slap was to assert dominance, demean, and embarrass his female co-worker in front of her colleagues. The act attacked her dignity and self-respect. Summary dismissal of Render’s employment was an appropriate response by the employer given certain aggravating factors. The court considered his seniority and the employer’s anti-harassment policy that had been communicated 8 days prior to the incident. The court also considered his lack of remorse and understanding that his conduct was unacceptable and contrary to company policy. The action was dismissed. Render appealed.
On appeal, the trial judge’s decision that the employer had just cause at termination was upheld. No common law notice of termination was therefore owed. However, the issue arose as to whether Render was entitled to statutory ESA entitlements for termination pay and severance. Under the regulations of the ESA, an employee may be disentitled to notice of termination or termination pay and severance if the employee has been “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.” The wilful misconduct standard is a higher standard than just cause, as set out in Plester v Polyone Canada Inc.. The appellate court referenced the Plester case in determining that the wilful misconduct standard had not been met by the employer. The Court of Appeal noted that the trial judge did not make a finding that the conduct was “preplanned”. The conduct was “in the heat of the moment in reaction to a slight” and therefore Render was entitled to his statutory ESA benefits.
The ‘Wilful Misconduct’ Standard
The appellate court’s decision on the ESA entitlements is concerning. The wilful misconduct standard requires an employer to show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct he or she knew to be serious misconduct (i.e. being bad on purpose). In my view, the trial judge made sufficient findings to meet the test. The appellate court’s focus on the fact that the slap alone was not “preplanned” is problematic and taken out of context. The slap was not accidental, so in other words it was intentional. This is supported by the trial judge’s findings regarding the purpose of the slap. The slap taken together with the comment to shake his hand for money surely constitutes being bad on purpose and was contrary to a known anti-harassment policy. Further, Render was not remorseful. He denied the seriousness of his conduct.
It’s worth noting that the conduct at issue in Plester was completely different. In that case, the terminated employee forgot to lock out a machine as required by his employer and delayed in reporting the incident when he realized what he had done. The conduct did not amount to just cause so it’s obvious why it would not meet the wilful misconduct test. The court in Plester observed an element of spontaneity in the act and “a deer in the headlights” freezing of intellect in the delay in reporting. This is hardly comparable to Render’s slap and subsequent behaviour.