Single Incident of Sexual Harassment Warrants Just Cause Termination
In response to employee misconduct, employers are right to implement a system of progressive discipline that entails coaching, a verbal warning, a written warning, suspension, a final warning, and finally, termination for just cause. However as affirmed by the Ontario Superior Court of Justice in Render v. ThyssenKrupp Elevator (Canada) Limited, 2019 ONSC 7460, certain egregious violations of company protocol, such as sexual harassment, warrant immediate dismissal without notice.
Mark Render worked for ThyssenKrupp Elevator (“TKE”) and its predecessor company for 30 years before he was dismissed. At the time of his dismissal, he was 51 years of age and was working as the Operations Manager of the Mississauga office of TKE.
On February 28, 2014, a workplace incident occurred between Mr. Render and a co-worker, Linda Vieira. On the day of the incident, Mr. Render and Ms. Vieira were waiting to speak to a mutual colleague. While they were waiting, another employee, Mr. Daniel, noticed a spot on Ms. Vieira’s shirt and asked if she was “lactating” in front of others. Continuing with the line of jokes, Ms. Vieira made a comment about Mr. Render’s work boots, referring to a comment that Mr. Render made a few days earlier about the inappropriateness of her work boots. She leaned into Mr. Render and said, “you’re short”. Mr. Render, feeling belittled and disrespected, said “yes I am” and crouched down to her breast level for two to three seconds backing her up against the wall. Then Mr. Render got up from his knees and slapped Ms. Vieira’s buttocks saying “good game”. Ms. Vieira immediately gasped. It was clear to all witnesses that Ms. Vieira was upset by the incident.
TKE investigated the incident and characterized Mr. Render’s conduct as a sexual assault. As a result, Mr. Render’s employment was terminated for just cause. In an action against TKE, Mr. Render challenged his summary dismissal, describing the touching as accidental and asserting that his summary dismissal was not proportionate or in accordance with TKE’s Progressive Discipline Policy.
What the Court Said
While analyzing his case, the court employed the contextual analysis outlined by the Supreme Court of Canada in McKinley v. BC Tel, 2001 SCC 38 to determine whether Mr. Render’s misconduct violated an essential condition of his employment contract. The court did so in spite of TKE’s assertion that in cases where an employer is satisfied that sexual harassment or sexual assault has occurred, less severe forms of corrective action, such as a warning or the requirement to apologise, would be inappropriate. The court rejected this argument and any unqualified rule that any misconduct was sufficient grounds for a dismissal without notice.
Nevertheless, the court found that Mr. Render’s misconduct was of a serious nature meant “to assert dominance over Ms. Vieira and to demean and embarrass her in front of her colleagues”. The court also found that his misconduct was unacceptable in today’s workplace, although the court chose not to comment on whether Mr. Render’s conduct was “sexual harassment, sexual assault or simply a common assault”. The court held that the fact that “Mr. Render was in a position of authority over Ms. Vieira exacerbat[ed] the seriousness of his misconduct”.
The court also found that TKE had actually communicated its policy of no tolerance for harassment and discrimination to its employees only eight days before Mr. Render’s misconduct. The court expected that Mr. Render, as a supervisor, would have followed the policy and set an example for other employees. Instead, he engaged in conduct contrary to the policy merely eight days after it was communicated to him.
The court placed great weight on one key aggravating factor – Mr. Render’s unapologetic actions in the aftermath of the February 28, 2014 incident. When Ms. Vieira confronted Mr. Render about his misconduct, Mr. Render became dismissive. He asked her “if she was serious” and said, “why are you upset – you have punched me in the arm in the past.” Even after Ms. Vieira clarified saying that Mr. Render hit her “on a private sexual part” of her body, Mr. Render did not seem remorseful.
In fact, shortly after the incident Mr. Render met with other co-workers and said, “who wants to touch the hand that slapped Linda’s ass?” and “for 10 bucks you can shake my hand.” Mr. Render did eventually apologize to Ms. Vieira saying that his conduct was not intended to be “sexual” and that he “was not trying to sleep” with Ms. Vieira but he did not appear to be sincere. Moreover, instead of taking responsibility for his actions, on March 5, 2014, Mr. Render made a formal complaint to Human Resources against Ms. Vieira and TKE regarding a prior incident in which Ms. Vieira punched him in the shoulder and made anti-Semitic comments to him. Based on his actions, it was clear that Mr. Render did not understand that his conduct was inappropriate and continued to insist that he was the wronged party.
As a mitigating factor, the court considered that Mr. Render was an employee of 30 years of service employee who had no prior disciplinary or performance issues. Mr. Render argued further that the Mississauga office where Mr. Render and Ms. Vieira worked included a joking environment that sometimes included “inappropriate jokes”. Of the 13 people working in the office, ten were male and three were female. The male workers at TKE would sometimes tap each other on the buttocks and say “good game”. The female employees were not included in this activity.
Mr. Render testified that he and Ms. Vieira were friends and that she would often make joking comments about his short stature. Mr. Render introduced into evidence a photograph of a gift given to him by Ms. Vieira at a company holiday party. The apron had an image of the body of a muscular man in underwear. While it was apparent that Ms. Vieira may have participated in the “inappropriate” jokes, the court found that “this did not mean she consented to being touched on a sexual part of her body” or being “demeaned in front of her co-workers”.
The court acknowledged that dismissal without notice or explanation is akin to “capital punishment” in employment law. In balancing the aggravating and mitigating factors described above, the court ultimately found that TKE had proved on a balance of probabilities that there was no reasonable alternative to the termination of Mr. Render’s employment for cause. The court’s decision highlights that in today’s modern workplace, where there is cultural acceptance of gender equality and social intolerance for sexual harassment, long-service employees may be dismissed for just cause where they engage in such misconduct and show little remorse for it. See Render v. ThyssenKrupp Elevator (Canada) Limited, 2019 ONSC 7460.
Employers routinely include “Termination without Cause” provisions in their employment contracts to limit their employee dismissal obligations. In a decision released on June 17, 2020, Ontario’s highest court found such a provision to be unenforceable.
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