Unwanted Touching And Dismissal: Wrongful Termination, Just Cause, Or Wilful Misconduct?

Written on behalf of Peter McSherry
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With the advent of the ‘me too’ movement, changes to the Occupational Health & Safety Act, and new company policies to address sexual harassment and misconduct, we are talking about these issues much more. Courts and employers are taking incidents of sexual misconduct more seriously than in the past.

The Ontario Court of Appeal recently ruled on a dispute involving a managerial employee who engaged in sexual misconduct in the workplace, which included unwanted touching of a more junior employee in the workplace. The Court of Appeal upheld the trial judge’s determination that the unwanted touching occurred. The Court of Appeal also determined that while there was just cause for termination, the employee’s misconduct was not wilful in nature, so he was still entitled to minimum standards.

Workplace sexual misconduct

ThyssenKrupp Elevator (Canada) Limited is an elevator parts and services company. The employee in this case, Mr. Render, had been with the company and its predecessor for 30 years and was 51 years old at the time of his dismissal. He held a supervisory role within the company as the operations manager of the Mississauga location.

He was accused of touching another colleague (the “complainant”) inappropriately in the workplace in front of several other colleagues. There were several witnesses to the incident. He did not deny the touching occurred but stated the touching was accidental. The complainant raised concerns to her employer and participated in a workplace investigation. At trial, she testified that she was humiliated by the conduct.

While Mr. Render maintains that he felt remorse about the incident, the judge found that he was not remorseful. While the complainant was immediately upset by the unwanted physical contact, Mr. Render did not appear to appreciate her perspective. He asked her if she was seriously upset and indicated she could not be genuinely upset because she punched him on the shoulder. During the course of the company’s investigation, he also failed to demonstrate remorse and raised concerns about the colleague.

Mr. Render also acknowledged speaking to other co-workers about the incident and offered to them, “for 10 bucks, you can shake my hand.” Mr. Render also did a demonstration of the incident for other male co-workers in the parking lot, which the complainant saw and testified that she felt mocked by the way they were talking about her and re-enacting the incident.

Trial judge determines just cause

The judge determined the company did have just cause to dismiss Mr. Render’s employment.

Under common law, employees are entitled to reasonable notice of the termination of their employment. Reasonable notice is based on how long it would take the employee to find alternate employment, which courts determine based on the employee’s age, years of service, availability of similar employment and the character of employment. If employers do not provide advance notice, employees can be paid salary continuance for the reasonable notice period or be provided a lump sum payment. Employees who engage in significant misconduct may lose their right to reasonable notice if there is ‘just cause’ to terminate the employment relationship.

The test for just cause was described in McKinley v BC Tel, which requires that courts apply a principle of proportionality and weigh the misconduct and compare it to the severity of the proposed punishment. The onus is on the employer to demonstrate that there were no other alternate punishments that could address the conduct short of dismissal.

In this case, the fact that Mr. Render was in a supervisory position, that the conduct was severe (unwanted sexual touching), and that he demonstrated a lack of remorse both immediately after the incident and subsequently during the investigation supported a finding that just cause had been established.

The difference between just cause and wilful misconduct

The trial judge did not include any analysis about whether Mr. Render’s conduct amounted to wilful misconduct under the Employment Standards Act, 2000.

As part of the appeal, Mr. Render’s counsel argued that even if Mr. Render’s conduct amounted to just cause for the dismissal of his employment, he was still entitled to 8 weeks of pay in lieu of notice in accordance with the Employment Standards Act, 2000. The employer argued that in accordance with the relevant regulations, employees are not entitled to the mandatory minimum notice pay if they are engaged in “wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”.

Just cause and wilful misconduct, disobedience and wilful neglect are often conflated and considered to be the same. However, the standard for wilful misconduct requires that the employee engage in “something deliberately, knowing they are doing something wrong”. In terms of how this applied in this case, the Court of Appeal determined the following:

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.

While the stakes of this appeal may seem low at just 8 weeks of pay, there may have been further impact on the parties than just the 8 weeks of pay. At trial, the judge awarded the company over $73,000 in costs. The Court of Appeal overturned the costs decision.

Contact Peter A. McSherry Employment Lawyer in Guelph for Advice on Wrongful Terminations

Peter A. McSherry Employment Lawyer assists employees seeking advice on their entitlement to an extended reasonable notice period and can review proposed severance packages. For employers, Peter A. McSherry can ensure employee dismissals meet all legal requirements, reducing the risk of employment litigation. Contact us online or by phone at 519-821-5465 to schedule a consultation.