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One time is serious enough! Does a single incident of sexual misconduct warrant dismissal?

May 2, 2022

How serious is serious enough?

In the recent decision of Render v. ThyssenKrupp Elevator (Canada) Limited, the Ontario Court of Appeal upheld the trial judge’s determination that a single incident of sexual misconduct amounted to just cause under the common law but did not constitute wilful misconduct under the ESA.

The facts:

Mr. Render was terminated for cause mainly because he slapped a female co-worker on her buttocks without remorse, in the presence of other male co-workers.
Mr. Render claimed that the slap was accidental.
At trial, Mr. Render admitted that after the slap he told his co-workers, “for 10 bucks you can shake my hand.”

The Decision and Appeal:

The trial judge found that Mr. Render’s termination for cause was appropriate given his lack of remorse and other aggravating factors. The Court of Appeal confirmed that the employer had just cause to terminate Mr. Render and no common law notice was owed.

But what about Mr. Render’s ESA entitlements?

The ESA Regulations state that an employee is not entitled 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 Court of Appeal found that Mr. Render’s conduct did not constitute wilful misconduct, so he was entitled to ESA termination and severance pay.

In coming to this decision, the Court of Appeal applied the test for wilful misconduct set out in Plester v Polyone Canada Inc.:

“In addition to providing that the misconduct is serious, the employer must demonstrate, and this is the aspect of the standard which distinguishes it from ‘just cause’, that the conduct complained of is ‘wilful’. Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. Rather, the employer must show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. It is, to put it colloquially, being bad on purpose”.

The court in Plester ultimately decided that Mr. Plester’s conduct, although serious and deliberate, “was not preplanned and not wilful in the sense required under this test. There was an element of spontaneity in the act itself.”

In Mr. Render’s case, the Court of Appeal noted that his conduct was not “preplanned” but was done “in the heat of the moment in reaction to a slight,” in line with the decision in Plester. Hence it was not “wilful misconduct” under the ESA.

Is one incident serious enough?

The decision is surprising, especially when contrasted with an Alberta Court of Appeal decision which stressed the seriousness of sexual misconduct in the workplace.

In Calgary (City) v Canadian Union of Public Employees Local 37, the City of Calgary terminated the employee after investigating a complaint that the employee grabbed and squeezed the complainant’s breast without her consent. His grievance challenging the termination went to arbitration, where the arbitrator determined that the employee had committed the misconduct and the City was justified in disciplining him. Yet, the arbitrator concluded that because this was a single incident, the complainant did not appear to be traumatized, and there was no evidence that the conduct would create a hostile and unsafe work environment, a nine-month suspension without pay and reinstatement of the employee’s employment with no loss of seniority was more appropriate than termination.

Although the Alberta Court of Queen’s Bench initially upheld the arbitrator’s decision, the Alberta Court of Appeal overturned it. The Court of Appeal stressed the seriousness of the conduct and decided that it was unreasonable for the arbitrator to find the employee’s termination was excessive, after finding the assault occurred as alleged.

The decision highlights the importance of maintaining safe workplaces for all employees and that a single instance of sexual harassment or assault can be serious enough to justify a dismissal, even in the unionized context.

Did the Ontario Court of Appeal get it wrong?

While it isn’t our role to second-guess the Court of Appeal, in our view the decision is surprising to say the least. The Court of Appeal focused on whether Mr. Render’s conduct was “preplanned,” but regardless, the slap was intentional, and Mr. Render joked about it afterward. One would think this constitutes being “bad on purpose”. Employee behaviour can be spontaneous and still, to use the wording in Plester, “intentional and deliberate.” Whether pre-planned or not, employers must take sexual harassment and assault extremely seriously.