Court of Appeal: Slapping Female Coworker’s Buttocks in “Heat of the Moment” not “Wilful Misconduct”
Earlier this month, the Court of Appeal for Ontario released its ruling in Render v. ThyssenKrupp Elevator (Canada) Limited. This decision deals primarily with the plaintiff’s appeal of the trial ruling that his former employer had cause to terminate his employment, and he thus had no severance entitlement.
The Facts
The appellant began work with his father’s company in 1984. The respondent bought this company in 2002. The appellant became operations manager for the respondent’s Mississauga office in 2005 and remained in this role until his dismissal in 2014.
The office had an informal atmosphere. Inappropriate jokes and banter were commonplace. Some of the male employees would occasionally tap each other on the buttocks and say “good game”, as if they were football players in a locker room.
The appellant and one of the female employees engaged in jokes and banter. This included the female employee teasing the appellant for being short, punching him in the arm, and giving him a holiday party gift of an apron emblazoned with a muscular man in underwear.
On February 28, 2014, six workers, including the appellant and the female employee, were in an office talking and joking. The female employee teased the appellant that he was short. One of the employees was on a telephone call. When this employee finished his call, the appellant, who was waiting to speak with him, told everyone to leave. The appellant made a sweeping gesture with his arm, touching the female employee’s buttocks and saying “good game.”
The female employee was visibly upset. She advised the appellant that his actions were inappropriate. The female employee then left the room and emailed her manager to report the appellant’s actions, noting that “he took it a step too far and actually spanked me on my butt.”
The female employee made a formal complaint. The respondent conducted an investigation. During which, the appellant alleged that the female employee had punched him in the arm and made anti-semitic remarks. He then also filed a formal complaint.
Having concluded its investigation, the respondent terminated the appellant’s employment for cause for touching the female employee’s buttocks. He was given no severance.
Prior to this incident, the appellant had no discipline or performance issues over a 30-year career.
The appellant then brought an action for wrongful dismissal. He was unsuccessful at trial, with the termination being upheld.
Issues on Appeal
The appellant appealed, in part, on the basis that there had been no breakdown in the employment relationship and there had thus been no cause to terminate. In addition, the appellant asserted that he should have received statutory termination pay and severance pay in accordance with the Employment Standards Act, 2000 (“ESA”). The Court of Appeal upheld the termination for cause, but found the appellant was entitled to ESA entitlements as his actions did not rise to the level of “wilful misconduct” (the standard required to relieve an employer from issuing statutory entitlements).
This finding is the first of its kind (of which we are aware). In distinguishing between the statutory threshold and common law cause for dismissal, the court confirmed what many trial courts (and the Ontario Ministry of Labour) have previously asserted: “the law on the interpretation of the prohibition sections [of the ESA] has been consistently stated to require more than what is required for just cause for dismissal at common law.”
The Court then relied heavily upon an earlier Ontario trial decision, Plester v. Polyone Canada Inc., to explain what is required to meet the statutory standard for misconduct. Specifically, the court highlighted that:
the employer must show the misconduct was intentional or deliberate; and
the conduct must be preplanned to be considered “wilful”.
Justice Feldman, writing on behalf of the court then concluded that the appellant’s conduct:
…did 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.
The court’s decision appears to place significant emphasis on behaviour being preplanned to qualify as “wilful misconduct.” This requirement creates a significant additional burden for employers in establishing that a dismissed employee committed wilful misconduct. In effect, it requires an employer to prove an individual’s mindset and their subjective prior intention to commit a wrongful act (thus being almost akin to special intent in criminal law).
A requirement for demonstrable preplanned bad behaviour may operate as a de facto licence to shield those individuals that, in the heat of the moment (or in response to a perceived slight), steal, lie or commit violent acts in the workplace. Such acts, no matter how serious, may fall short of the statutory standard. The message this sends appears at odds with prevailing societal views and minimizes the severity of such conduct.
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca
