In a recent case in Ontario employment law, Render v. ThyssenKrupp Elevator (Canada) Limited Group, the Ontario Court of Appeal explained the onerous standard on employers to prove “wilful misconduct” under the Employment Standards Act, while also making it clear that any form of workplace sexual harassment will not be tolerated.
What Happened in this Case?
A 30-year manager was terminated for cause after a single incident that occurred in the workplace after he slapped a female co-worker on her buttocks. The slap arose in response to a joke the female co-worker made about his height which, as it turned out, arose in the context of a workplace that typically included “regular joking and bantering.”
After the employer conducted a workplace sexual harassment investigation, it made the decision to terminate his employment, refusing to provide him with any financial severance package compensation. As a result, the employee sued the employer for wrongful dismissal. However, at trial, the judge rejected the employee’s account that the slap was “accidental,” especially in light of his admission at trial that after the slap, he told male co-workers: “for 10 bucks, you can shake my hand.”
The court held that regardless of whether the slap constitutes “sexual harassment, sexual assault or a common assault,” it was “very serious and unacceptable conduct… in today’s workplace.” In the court’s view, the slap was intended to assert dominance, demean and embarrass the female co-worker, which attacked her dignity and self-respect. As such, the employer was justified in terminating the employee for just cause, particularly given the employee’s seniority as a manager; lack of remorse on the incident; previous workplace training on the employer’s anti-harassment police (and despite the employee’s long service and clean record with the company, or the general office “joking” culture).
The employee then appealed the lower-court decision.
Ontario Court of Appeal
In seeking to overturn the court decision, the employee argued, among other things, that there was no just cause for dismissal based on the incident. Furthermore, even if there was just cause for termination under common law, the employer should still have provided his minimum termination entitlements under the Employment Standards Act, 2000 (ESA).
In particular, the employee argued that his single incident of misconduct was not severe enough to rise to the level regally required legally required to disentitle him from receiving 8 weeks of termination pay, benefits continuation and 26 weeks of severance pay.
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” – which is a much higher standard than just cause for dismissal under common law. As such, the employee argued he was owed 8 weeks of termination pay and 26 weeks of severance pay.
On appeal, the court upheld the trial judge’s decision that the employer had just cause for dismissal under common law. It rejected the employee’s argument that the employer could have applied alternative disciplinary measures instead of terminating his employment, and that there was no breakdown in the employment relationship. In its view, termination for just cause was warranted as a “proportional response” to his misconduct. In doing so, the court affirmed that the key question in a case of just cause dismissal is “whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship” (cited from Dowling v. Ontario (Workplace Safety & Insurance Board) (2004), 246 D.L.R. (4th) 65 (Ont. C.A.)). The court stated, “when things go too far, as they did in this case, the legal consequences can be severe. Every workplace should be based on mutual respect among co-workers.”
However, the court agreed with the employee that his behaviour did not meet the standard of “wilful misconduct” standard, particularly since the buttocks slap was not “preplanned” and done “in the heat of the moment.” Therefore, the employee was minimum statutory entitlements entitled to his minimum termination pay and severance pay. In the court’s view:
“In my view, the appellant’s conduct does not rise to the level of wilful misconduct required under the Regulation. While the trial judge found that the touching was not accidental, he made no finding that the conduct was preplanned. Indeed, his findings with respect to the circumstances of the touching are consistent with the fact that the appellant’s conduct was done in the heat of the moment in reaction to a slight. Although his conduct warranted dismissal for cause, it was not the type of conduct in the circumstances in which it occurred that was intended by the legislature to deprive an employee of his statutory benefits.”
Lessons for Employers and Employees
This case reiterates that, when it comes to termination of employment, there are differing standards at common law (just cause for dismissal) and under the ESA (wilful misconduct). Specifically, this means there can be circumstances where an employer has “just cause” for dismissal under the common law (which disentitles an employee from reasonable notice of termination or pay in lieu of notice), but not “wilful misconduct” (which entitles the employee to receive termination and severance pay required by the ESA).
Furthermore, based on the caselaw, it is likely that a court will need evidence that the employee’s behaviour was “preplanned” and not simply in the heat of the moment) in order to rise to the strict level of “wilful misconduct” (which can be difficult for most employers to meet). As a previous court decision put it:
“In my view, however, the distinction is quite obvious: Just cause involves a more objective test, albeit one that takes into account a contextual analysis and therefore has subjective elements. Wilful misconduct involves an assessment of subjective intent, almost akin to a special intent in criminal law. It will be found in a narrower cadre of cases: cases of wilful misconduct will almost inevitably meet the test for just cause but the reverse is not the case.
The conduct of Mr. Plester was serious, and his failure to report deliberate. However, it did not rise to the very high test set for disentitlement to the statutory notice benefit. It was not preplanned and not wilful in the sense required under this test. There was an element of spontaneity in the act itself and at most a “deer in the headlights” freezing of intellect in the delay in reporting. On these facts willful misconduct should not be found.”
Contact Our Ontario Wrongful Dismissal Lawyer
If you are an employer and believe that you have grounds for just cause for dismissal of one of your employees, or an employee who has been accused of just cause for dismissal and want to find out if you have a valid case of wrongful dismissal or an entitlement to a severance package, our experienced employment lawyer at Bune Law can help. Contact us by phone 647-822-5492 or fill out the contact form to to the side. We would be happy to assist in your employment law matter as quickly as possible.
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