In the recent decision of Render v ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, the Ontario Court of Appeal upheld the just cause dismissal of a high-level manager with 30 years of service after he smacked the buttocks of a female co-worker.

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Facts

The plaintiff worked for the company for 30 years and was in the position of Operations Manager at the relevant time. The incident occurred in the office when the plaintiff was with several co-workers joking around. He crouched down and placed his face near a female co-workers breasts for two to three seconds; as he was getting up, he then smacked her buttocks with a sweeping gesture.    

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The company conducted an investigation into the incident and terminated the plaintiff for cause pursuant to its harassment policy. The plaintiff sued for wrongful dismissal. He did not deny the touching, but claimed it was accidental and non-sexual. He argued that the termination was disproportionate given his 30 year history and otherwise blameless disciplinary record. He also referred to the company’s progressive discipline policy and said that a less discipline should have been considered first under that policy.

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Court Decisions

In the trial, the company showed that it had considered the possibility of less discipline, but deemed them not appropriate because continuing to employ the plaintiff would send a message to other female employees that the misconduct was condoned.

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The trial court, and subsequently the appeal court, upheld the termination for cause. The courts concluded that dismissal was a proportionate response given: the seriousness of the harassment; the existence of a zero-tolerance harassment policy; the employee’s role as a manager and the fact that he weas responsible for implementing the harassment policy; and the employee’s lack of appreciation and remorse for his conduct during the investigation. The court found these factors regardless of the fact that sexual banter and joking around was commonplace in this particular work environment.  

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Interestingly, at trial the successful employer was awarded legal costs of almost $75,000. However, the appeal court disentitled the employer to its costs for making statements to the media before the trial (through a press consultant) that were sensationalist and misleading. The behaviour was classified as misconduct as the court found it had the potential to taint the evidence and witnesses.

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Takeaways

This case follows other recent cases showing courts are increasingly unwilling to treat any instance of sexual touching or harassment as “minor” and uphold a just cause dismissal where a single instance of such conduct is proven. This is amplified where the perpetrator is part of management and responsible for setting an example or enforcing the very policy they have breached. In addition, a half-hearted apology or lack of remorse during the investigation will be a relevant factor.  

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Notwithstanding this precedent and the judicial trend, termination for cause remains a very high bar. The Supreme Court of Canada test of McKinley still requires employers to consider the context of the situation, including the employee’s years of service, any past record, the seriousness of the conduct in issue, and existing workplace policies. In addition, the employers must consider the possibility of lesser discipline and whether it is appropriate in the circumstances under a consideration of proportionality.    

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Employers should consider their current policies and ensure they have strong anti-harassment and discrimination policies in place with appropriate training, in addition to well-developed processes and procedures for the investigation of complaints. A good policy and a solid investigation will go a long way in the event of a lawsuit. Finally, if litigation is contemplated, employers should seek legal advice before making any public statements about the case.

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