A decision was recently released from the Ontario Court of Appeal which affirmed the trial judge’s finding of just cause dismissal for a manager of an elevator company who slapped a female subordinate’s buttocks at the workplace.
The Facts
The appellant was an operations manager who had 30 years of service in his role at the company in its Mississauga office. The respondent, ThyssenKrupp Elevator, employed the appellant and his co-worker, Linda Vieira, an accounts manager. Ms. Vieira did not directly report to the appellant but she was subordinate to him in the company hierarchy. It was a small office with about 10 men and 3 women.
The atmosphere at the office was social and convivial, with both males and females engaging in jokes and occasionally inappropriate humour. Only the men would sometimes slap each other on the buttocks and say “good game” in a manner reminiscent of football players in a locker room. One day the friendly atmosphere took a turn when the appellant crouched down in front of Ms. Vieira with his face close to her breasts. He then slapped her on the buttocks in a sweeping gesture which he later alleged was an accident. Ms. Vieira did not take the slap lightly. She was visibly shocked that he had touched her on a private sexual part of her body. The appellant defended his actions by reminding her that she regularly punched him the arm. Although the appellant asserted that he apologized to her at the time of the incident, in her testimony at trial, Ms. Vieira denied that he did or that he displayed any sign of any remorse. Ms. Vieira promptly emailed her manager, Mr. Platt, and demanded that the appellant apologize to her. That same day the appellant discussed the incident in his office with his two male co-workers. Although there was some contradictory testimony about what exactly was said he did admit to saying, “for 10 bucks you can shake my hand.”
Ms. Vieira decided to report the incident to HR with a formal complaint. After the HR manager conducted an investigation, interviewing all the relevant parties, she and the respondent’s vice-president made the decision to terminate the appellant’s employment. The appellant was given a termination letter which provided no severance, termination, or vacation pay.
Trial Findings
The key issue before the trial judge was to determine whether it was reasonable for the employer to handle the misconduct in question with a just cause termination using the contextual analysis required by the Supreme Court of Canada decision in McKinley. Using this analysis, the court applied the facts of the case to determine whether the misconduct was serious enough to “violate or undermine the employment relationship.”
The trial judge considered the fact that the appellant was a manager and the role demanded that he both model the workplace policies and ensure a safe work environment. He also found that the appellant was in a position of authority within the company and that this factor exacerbated the seriousness of the misconduct.
The trial judge also considered that just a mere eight days before the incident, the company had implemented a new zero-tolerance Anti-Harassment and Anti-Discrimination Policy. The policy stated that sexual harassment could arise from a single incident and that it included non-consensual touching. It also provided a warning that the consequence of violating this policy would be discipline, up to and including termination of employment.
Another noteworthy finding of the trial judge which critically affected the decision was that the appellant failed to appreciate the seriousness of his action. The trial judge found that the appellant’s apology was disingenuous given that he launched his own formal complaint to HR against Ms. Vieira, stating that she had previously punched him the shoulder and made anti-semitic remarks. Ultimately, because the trial judge found that the appellant’s actions after the incident indicated a manifest lack of remorse, it “put into question whether the employment relationship could be maintained.”
Principle of Proportionality
The trial judge next had to consider whether the termination of the appellant’s employment was a proportionate response. Proportionality is a necessary factor in the analysis of the employer’s correct disciplinary response as set out in paragraph 43 of McKinley. Quoting from another decision, the trial judge recognized that termination of employment is the “capital punishment of employment law” and “must not be resorted to in trifling cases.”
Another key principle which the trial judge considered was that that onus of proof is always on the employer to show that there was no other reasonable alternative but to terminate the employee for cause.
In the end, after applying these legal principles to the case at bar, the trial judge concluded that the respondent had met its onus and that summary dismissal was the appropriate means of discipline. This was even notwithstanding the fact that the trial judge considered the mitigating factors in favour of the appellant: his 30 years of service and his previously unblemished disciplinary record.
Appellate Findings
In reviewing the trial judge’s reasoning, the Court of Appeal found that the trial judge had given sufficient weight to all of the evidence. Specifically, Feldman J. rejected the appellant’s contention that the employment relationship had not broken down or that the respondent could have disciplined him without resorting to just cause termination. Feldman J. noted that given the seriousness of the conduct, involving the non-consensual touching of a private body part, the respondent correctly recognized the optics of the case and how any disciplinary decision would be a reflection of the company itself. The trial judge found that the response had acted reasonably in making the executive decision to not be seen as condoning the very type of behaviour that it expressly prohibited in its Anti-Harassment and Anti-Discrimination Policy. Ultimately, Feldman J. deferred to the trial judge’s reasons and found that he had considered all of the relevant factors, including the mitigating factors, but that the fundamental reasons for the termination – the seriousness of the conduct, and the lack of remorse, must prevail. Accordingly, Feldman J. found that there was no wrongful dismissal and upheld the just cause termination.
Just Cause and ESA Entitlements
The appellant did have a small measure of success in that the Court of Appeal did find that he was entitled to termination pay pursuant to s. 54 of the Employment Standards Act (ESA) in the amount of 8 weeks. The Court of Appeal found that that there was no evidence that the misconduct in question was wilful so as to meet the test for wilful disobedience set out in ss. 2(1)3 and 9(1)6 of the ESA. These sections prescribe that in order for an employer to be relieved of the duty to pay termination pay and severance pay, the employer has the onus of showing that the employee is guilty of “wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.” A finding of just cause is not sufficient to discharge this burden and more is required – an employer has to prove that the misconduct in question was done deliberately and intentionally. The analysis is akin to the mens rea analysis in criminal law, where the employer has to prove that the employee is “being bad on purpose.”
Takeaway
Render v. ThyssenKrupp has set a new precedent in Ontario which clearly prescribes that a zero-tolerance policy in cases involving sexual harassment is no longer a harsh outcome for offending employees but a fair reflection of changing societal values. The courts are clearly siding with the victims of sexual harassment in espousing the “one strike, you’re out!” ethos that accords with the “me too” movement that has gained traction over the past few years.
If you have been sexually assaulted at work, or are facing allegations of sexual assault, please contact our office to obtain advice that is specific to your situation.