Keep Your Hands (and Feet) to Yourself: ONCA Upholds Trial Judge’s Finding of Just Cause, But Awards Entitlements Under ESA

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Recently, in Render v. ThyssenKrupp Elevator (Canada) Limited, the Ontario Court of Appeal (“ONCA”) upheld a trial judge’s finding that a single incident involving the Appellant slapping a co-worker’s buttocks can cause a breakdown in the employment relationship and justify their dismissal for cause. However, the ONCA allowed the appeal regarding the Appellant’s entitlements under the Employment Standards Act, 2000 (the “ESA”) and costs.

a)   Relevant Facts

Mark Render was terminated for slapping the buttocks of a co-worker, Linda Vieira . Mr. Render worked for ThyssenKrupp Elevator (Canada) Limited (the “Employer” or the “Company”) for a period of thirty (30) years and held a managerial role, Operations Manager, at the time his employment was terminated.

Ms. Vieira was an Accounts Manager at the Company. The office was small and it was a very social atmosphere, which included regular joking and bantering. This, regrettably, included inappropriate jokes and behaviour. For example, the male workers would occasionally tap each other on the buttocks and say “good game” as if they were football players on the field or in the locker room. The female co-workers were not included in this activity.

On February 20, 2014, the Employer introduced a new Anti-Harassment and Anti-Discrimination Policy (the “Policy”) by way of a PowerPoint presentation and discussion. Both Mr. Render and Ms. Vieira were in attendance and were informed the Company had zero-tolerance for harassment and discrimination, and that touching is considered sexual harassment, which can arise from a “single incident and may include public humiliation”. The Policy further stated that an employee who engages in conduct that is contrary to the Policy will be subject to appropriate discipline, up to and including termination of employment.

The incident that led to Mr. Render’s dismissal took place in an employee’s office, where six (6) employees were present, including Mr. Render and Ms. Vieira. The trial judge was required to make some factual findings regarding what occurred as the employees’ versions of events differed. The gist of the incident is as follows:

  • Vieira either stood on the toes of Mr. Render’s boots or stood beside him, leaned in, and said “you’re short” or looked down on him as a non-verbal joke about his height. The trial judge found that Ms. Vieira made either a verbal or non-verbal joke about Mr. Render’s height.
  • Render said “yes I am”, crouched down while about 12 inches from her, and said “ this is how short I am when I take my boots off”. He then went down on his knees, crouching in front of her with his face close to her breasts for a few seconds.
  • As Mr. Render was getting up, he claimed he made a sweeping gesture with his right hand, intending to tap Ms. Vieira on the hip and said “get outta here”. However, he claimed he either lost his balance or she turned, and his hand touched her buttocks. When that happened, he said “good game”.
  • Vieira gasped and said that what Mr. Render did was not okay. Mr. Render asked Ms. Vieira why she was upset when she had previously punched him in the arm. Ms. Vieira informed him that this was different in that he “hit [her] on a private sexual part of [her] body”. Ms. Vieira claims that Mr. Render did not apologize at this time and, instead, told her that she could no longer punch him in the shoulder.

Following the incident, Ms. Vieira documented what occurred, reported the incident to the Office Manager, and eventually reported it to Human Resources. The matter was investigated, and the Company made the decision to terminate Mr. Render solely on the incident in which Mr. Render touched Ms. Vieira on the buttocks. Mr. Render was given no severance, termination or vacation pay.

b)   The Trial Decision

The trial judge made the following factual findings:

  • Render’s face was in close proximity to Ms. Vieira’s breasts for two (2) to three (3) seconds, and as such, he was invading her personal space. This was inappropriate conduct.
  • The slap on Ms. Vieira’s buttocks was sufficient to cause Ms. Vieira to be shocked and upset. A light tap would not have caused her to react the way she did.
  • The slap was not accidental.
  • Whether the act was a sexual harassment, sexual assault, or simply a common assault, the purpose seems to be the same: assert dominance over Ms. Vieira and to demean and embarrass her in front of her colleagues. This was an act that attacked Ms. Vieira’s dignity and self-respect and is unacceptable in today’s workplace.

The trial judge then considered the contextual analysis mandated by the Supreme Court of Canada (“SCC”) in McKinley v. BC Tel, which states that such an analysis requires an examination of the facts, circumstances, nature and seriousness of the employee’s conduct to determine whether it is sufficiently egregious so as to violate or undermine the employment relationship. In doing so, the trial judge considered:

  • Render held a managerial role and was therefore responsible for ensuring a safe work environment.
  • Render was in a position of authority over Ms. Vieira (which exacerbates the seriousness of the misconduct).
  • The Company’s Policy, which was introduced prior to the incident.

Further, the trial judge found that Mr. Render did not appreciate the seriousness of his action. Mr. Render’s lack of contrition and failure to understand the seriousness of his actions put into question whether the employment relationship could be maintained.

Mr. Render’s record with no discipline or performance issues and 30-year length of employment, were taken into consideration as the trial judge considered mitigating factors. Notably, the trial judge was not prepared to view the joking office culture (which included inappropriate jokes and behaviour) as mitigating factors.

In determining whether the termination of Mr. Render’s employment was a proportionate response to the incident, the trial judge applied the principle of proportionality and acknowledged that just cause is the “capital punishment” of employment law. The onus of proof is on the employer to prove that there was no reasonable alternative to the termination of employment for cause, and the burden of proof to establish just cause is high, especially in the case of a long-serving employee, such as Mr. Render.

The trial judge found that the Employer met its onus and established that a just cause dismissal was appropriate and that two (2) aspects of Mr. Render’s conduct (the slap and lack of understanding and remorse), taken together, were not reconcilable with sustaining Mr. Render’s future employment. Further, it was especially concerning that Mr. Render seemed to believe that a punch on his shoulder was equally serious as a male managerial employee slapping a female co-worker on the buttocks and that this was not a form of sexual harassment or assault.

c)    The Court of Appeal Decision

Mr. Render appealed the ONSC decision, and in doing so, he submitted that:

  1. The trial judge erred in making the following factual findings: (1) that Mr. Render’s contact with his co-worker was not accidental; and (2) that Mr. Render’s remorse was not genuine.
  2. The trial judge erred in law in concluding that there was just cause. Mr. Render argued that: (1) there was no breakdown in the employment relationship; and (2) the Employer failed to consider other disciplinary measures before terminating his employment.

Further, Mr. Render sought:

  1. A finding hat he was entitled to benefits under the ESA (not addressed by the trial judge); and
  2. To appeal the trial judge’s failure to award punitive damages, or in the alternative, Mr. Render sought leave to appeal the trial judge’s award of costs.

The ONCA dismissed Mr. Render’s appeal from the finding that there was no wrongful dismissal and the award of no punitive damages. However, the ONCA allowed the appeal with respect to Mr. Render’s ESA entitlements and costs.

ESA Entitlements

With respect to the issue of Mr. Render’s ESA entitlements, the ONCA considered the “wilful misconduct” standard required under the ESA for an employee to be disentitled to notice or severance. Regulation 288/01 identifies 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, as an employee not entitled to notice or severance.

The question, then, was whether Mr. Render met this standard to be disqualified. The ONCA found that he did not. The ONCA considered Plester v. Polyone Canada Inc., in which Wein J. stated that in order to be disentitled from the ESA entitlements under the “wilful misconduct” standard in the Regulation, the employee must do something deliberately, knowing they are doing something wrong. In Plester, Wein J. the conduct was not preplanned and was therefore not wilful in the sense required under the test. In this case, the ONCA did not find that Mr. Render’s conduct rose to the level of wilful misconduct as the trial judge did not find that Mr. Render’s conduct was preplanned. Instead, in the trial judge found that Mr. Render’s actions were committed “in the heat of the moment in reaction to a slight”.

The ONCA found that Mr. Render was entitled to eight (8) weeks of termination pay under the ESA; however, they were not directed to evidence of the Employer having a payroll of $2.5 million, as required under the ESA, and was not in a position to award the requested severance pay.

Costs

The trial judge awarded the Employer its costs on the basis that they were fully successful in the action. However, given a number of reasons, including that Mr. Render had now been awarded his termination pay, the Employer was no longer fully successful.

More importantly, during the trial, the Employer engaged in litigation misconduct that was egregious (as described by the trial judge), which the ONCA viewed as disentitling the Employer to its costs of the trial. Ms. Vieira conducted an interview with the press after her examination-in-chief was completed and before her cross-examination (she was subject to a witness exclusion order). The trial judge stated that they recognized the Employer was not responsible for what Ms. Vieira said to the press during the trial but was of the view that the Employer facilitated and promoted Ms. Vieira’s breach of the witness exclusion order given that they retained a media consultant before the trial started, and information was sent to media outlets sensationalizing the trial. This information included a statement from Ms. Vieira containing allegations which were not proven at trial.

The article in this update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hunter Liberatore Law LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hunter Liberatore Law LLP. ©

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