After a 10 day trial, an Ontario judge recently concluded that touching a female’s buttock in the presence of four witnesses, who had conflicting versions of what happened, was just cause for termination for an employee with 30 years service who had a clean disciplinary record.
Some may think this is a result of the #MeToo movement but Ontario courts have considered sexual harassment/assault to be extremely serious misconduct for at least 20 years. There is a trilogy of Ontario Court of Appeal cases from 1998 where this court concluded that this kind of conduct was just cause for termination.
This blog summarizes a court case, involving Mr. Render and ThyssenKrupp Elevator (Canada) Limited. (“TKE”)
Mr. Render was 51 years of age and worked at TKE and its predecessor company as an Operations Manager for 30 years. Four people reported directly to him and about 40 technicians and mechanics indirectly reported to him.
A co-worker who he did not supervise, Ms. Vieira, alleged that Mr. Render slapped her buttocks. Four employees witnessed the incident which took place in an office at the workplace. Mr. Render testified that as he was getting up from his knees, he made a sweeping gesture with his right hand. He testified that he meant to tap Ms. Vieira on her left hip as he was getting up. He either lost his balance or she turned, and his hand came into contact partly on her left hip and buttock. As he made the sweeping gesture he said “get outta here”. After his hand came into contact with her buttocks, he said “good game”. Mr. Render described the touching as accidental and denied there was a sexual component.
Ms. Vieira testified that Mr. Render raised his left arm above his head and slapped her directly on her buttocks. She described the slap as strong and hard. She said it stung for about 10 minutes.
Two of the witnesses testified there was minor contact and one witness said it was not minor.
The judge concluded “the slap was of sufficient severity to cause Ms. Vieira to be shocked and upset by what had happened; I am satisfied that the act of slapping Ms. Vieira’s buttocks was an act that attacked her dignity and self-respect.”
Eight days before the incident, the employer had introduced an Anti-Harassment and Anti-Discrimination Policy. It was presented to employees including Ms. Vieira and Mr. Render by way of a PowerPoint presentation, followed by a discussion.
The Legal Test for Just Cause
The court applied the three part test that courts follow when deciding whether just cause has been proven. In particular:
Cause is determined by an objective contextual and proportional analysis. A finding of misconduct does not, by itself, give rise to just cause; the question is whether, in the circumstances, the behaviour is such that the employment relationship could no longer viably subsist. There must be a balance struck between the severity of an employee’s misconduct and the sanction imposed. The factors considered include the employee’s tenure, employment record and the seriousness of the misconduct:…
With respect to whether the employment relationship could viably subsist, the judge stated: “Mr. Render’s conduct following the incident is particularly troublesome…his lack of understanding and remorse following the incident, is not reconcilable with sustaining his employment…” Despite the employee’s 30 years of service, and clean employee record the judge concluded there was just cause for termination.
Lessons to Be Learned:
1. An employer should have an Anti-Discrimination Policy and train employees on it.
2. An employer should carefully consider whether an employee shows remorse, apologizes for misconduct, and shows an understanding of the seriousness of any misconduct.
3. An employer should consider including a specific penalty clause in its employment contract which states that sexual harassment or sexual assault is just cause for termination.
Note: The judge in this case essentially stated that if an appeal court concludes he was wrong and there was no just cause then the employer should have provided the employee with 24 months notice of termination and damages which would equal to $337,405.72. I do not know whether this case has been appealed. Stay tuned.
For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416-317-9894 or at [email protected]