Turning the other cheek

A recent Ontario Court of Appeal workplace misconduct case involving a tap/slap on the buttocks of a female employee by a male manager yields interesting result, sets new precedent. 

 

Render v. ThyssenKrupp Elevator (Canada) Limited (2022 ONCA 310) is a recent Ontario Court of Appeal (“OCA”) that has set a new and surprising precedent.

Therein a former managerial employee appealed the trial judgment that upheld his employer’s dismissal of his employment for just cause, awarded costs to the employer, did not expressly address his entitlement to his statutory minimum entitlement to notice of termination under the Ontario Employment Standards Act, 2000 (“ESA”), and did not award him punitive damages as a result of the employer’s aggressive litigation conduct.

Overview

The core 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”. Both the trial judge and OCA in the Render case found in the affirmative in relation to a 30 plus year employee with a clean employment record.     

Why? What was Mr. Render’s misconduct under review?

Mr. Render at the time of his dismissal held the position of operations manager. In this position Mr. Render was responsible for the service operations of the employer’s Mississauga office, which was a relatively small office with an “overly-familiar” workplace culture where inappropriate joking was fostered by Mr. Render to “reduce stress”. What it did do was remove boundaries necessary to foster good workplace behavior.

Mr. Render’s dismissal arose from a single workplace incident involving a female subordinate that occurred in front of four other male subordinates. While Mr. Render argued he tapped the female subordinate on her buttocks as part of a joke that “went badly”, the trial judge held it was a slap as supported by Mr. Render’s own “good game” comment after making contact.    

Prior to the incident: 

• the male employees would occasionally tap each other on the buttocks and say “good game” as if they were football players on the field or in the locker room. 
• One of the four other male employees present asked the female employee if she was lactating in relation to a stain on her blouse.
• The female employee made short jokes about Mr. Render in order to fit in at the workplace and deflect inappropriate and apparently sexualized comments made to her, which is what occurred as part of the incident and led up to the slap/spank that the female employee (one of three relative to 10 men) on her butt so as to demean her in front of her peers. 

After the incident: 

• two of the men present for the act went to Mr. Render’s office and Mr. Render admitted that he said, “for 10 bucks you can shake my hand.” (i.e., the one that touched the female employee’s buttocks). To the office manager Mr. Render described the incident as “a joke that went badly.’  
• Mr. Render rather than take responsibility for his actions, made formal complaints to HR that the female employee had previously punched him in the shoulder and made anti-Semitic comments to him.

What was the employer’s misconduct under review? 

Mr. Render in bringing his appeal argued there was no breakdown in the employment relationship. Lesser discipline ought to have been considered and applied.

In relation to the punitive damages, the employer retained a trial publicist who, amongst other things, facilitated the breach of the witness exclusion order that resulted in the tainting of evidence of some witnesses.  

Results of the appeal

The trial judge’s decision that Mr. Render’s misconduct constituted “just cause” under the common law was upheld as proportionate to the seriousness in the misconduct as it caused a breakdown in the employment relationship but made the determination at first instance that Mr. Render’s misconduct was not disentitling conduct under the ESA’s regulations. The OCA reversed the cost award given the employer’s litigation misconduct as the employer was responsible for the actions of the media consultant.

I have to question if the OCA’s intention was to split the difference to provide a small win to Mr. Render given the employer’s litigation misconduct without meaning to redefine what “wilful misconduct” is under the ESA or whether there was an outright error in law with its finding that Mr. Render’s conduct did not rise to the level of wilful misconduct as the trial judge “made no finding that the conduct was preplanned”- which is not and has never been a requirement under the regulation to the ESA for establishing disentitling conduct.  

What is the new legal test?

The addition of the requirement that the misconduct must be preplanned on top of being intentional to meet the threshold of wilful misconduct necessary for disentitlement to ESA notice of termination/severance pay.  

Is this new test feasible? 

No. Most workplace misconduct is not preplanned. For example, incidents of theft often occur as a matter of opportunity and not under a scheme to defraud – however, only schemes to defraud would meet this new test. Balance this test against the contents of the Ministry of Labour’s (MOL)’s Guide to the ESA, which provides that the interpretation of “wilful” includes conduct “when an employee intended the resulting consequence or acted recklessly if they knew or should have known the effects their conduct would have.”  

Balance the same also against the basic tenants of human rights laws. Discrimination and harassment result from intentional and unintentional prejudice, stereotyping, and misuse of power. Intention to discriminate is not a prerequisite and such intention is irrelevant. One does not need to be a predator or a bigot with malicious intent and a planned course of action to discriminate or harass in violation to our human rights laws – whose purpose is to reduce discrimination. Does providing statutory notice of termination to managerial employees who recklessly engage in demeaning conduct towards subordinates assist with achieving this purpose?