The Ontario Court of Appeal recently released the decision of Render v. Thyssenkrupp Elevator (Canada) Limited, 2022 ONCA 310 [Render], regarding the termination of an employee following a single incident of sexual harassment.
Mr. Render had been the operations manager for 30 years and was responsible for his employer’s service operations, with forty-four direct and indirect reports. He was also involved in the hiring and training of employees. He had no previous record of misconduct.
Ms. Vieira was an account manager who worked with Mr. Render in a small office of only thirteen employees.
In February 2014, Mr. Render and Ms. Viera were joking around in another employee’s office. Mr. Render, while getting up from his knees after pretending to be shorter, slapped her backside and said, “good game.” Ms. Vieirabecame very upset and was visibly embarrassed by the conduct.
Mr. Render apologized to Ms. Vieira ten minutes after the incident and again at the start of the following week.
Dissatisfied with the apologies, Ms. Vieira reported Mr. Render to her supervisor, then to HR and later to the company’s vice-president. After an investigation by HR, the vice-president decided to terminate Mr. Render’s employment.
At trial, the Court found the company had just cause to terminate Mr. Render. The trial judge found that the employer had met its onus and established that summary dismissal was the appropriate response in all of the circumstances.
Of note, the Ontario Supreme Court of Justice held that the lack of understanding and remorse and the contact on Ms. Viera’s backside were not reconcilable with sustaining Mr. Render’s employment.
The Court of Appeal
Mr. Render appealed the finding of just cause.
He disputed the findings that the contact was not accidental, that his remorse was not genuine, that there was a breakdown in the employment relationship, and that the disciplinary measure was appropriate.
In dismissing Mr. Render’s appeal, the Court of Appeal relied on trial judge’s finding of facts. The Court of Appeal held that as the trier of fact, the trial judge is entitled to hear and see the evidence and draw conclusions from it.
The Court of Appeal confirmed the three-step test set out in McKinley v. BC Tel, 2001 SCC 38, which requires: (1) determining the nature and the extent of the misconduct; (2) considering the surrounding circumstances; and (3) deciding whether the dismissal is warranted.
While the Ontario Superior Court of Justice did not expressly refer to the McKinley test, the Court of Appeal held that the trial judge properly considered the three requisite considerations in his analysis of the evidence and in his conclusion. Specifically, the trial judge held that a contextual analysis requires an examination of the particular circumstances and the nature and seriousness of the employee’s conduct to determine whether it is sufficiently egregious to violate or undermine the employment relationship:
1. Determining the nature and extent of the misconduct
(a) As to the contact being an accident
The trial judge rejected Mr. Render’s evidence that the contact was accidental. He based this finding on the fact that Mr. Render did not assert that the contact was accidental until the employer had raised the possibility of termination and that he said “good game” rather than saying it was an accident. The trial judge also rejected Mr. Render’s evidence that he was trying to slap her hip side, holding that Mr. Render could have stopped himself from making contact when Ms. Vieira was turning around.
(b) As to the contact not being sexual
The Court of Appeal upheld the trial judge’s finding that regardless of whether the contact was sexual harassment, sexual assault or simple assault, the purpose was to assert dominance over Ms. Vieira and demean and embarrass her in front of her colleagues. The trial judge held that the conduct was an attack on her dignity and self-respect and was “unacceptable in today’s workplace.”
(c) Employee relationship
The Court of Appeal accepted the trial judge’s finding that Mr. Render was in a position of authority over Ms. Vieira and that this dynamic exacerbated the seriousness of the misconduct. The Court of Appeal also accepted the trial judge’s assertion that Mr. Render was a supervisor and was responsible for ensuring a safe work environment.
2. Considering surrounding circumstances
(a) The anti-harassment / anti-discrimination policy
Eight days before the incident, the employer had presented the company’s new Anti-Harassment and Anti-Discrimination Policy. Both Mr. Render and Ms. Vieira attended the presentation.
The policy was a “zero tolerance” for harassment and discrimination and made it clear that a single incident could amount to sexual harassment, including unwelcome touching. Consequences for this type of misconduct were expressly said to include discipline, up to and including termination of employment.
Mr. Render also confirmed he was familiar with the Progressive Discipline Process Policy, which held that when “misbehaviour is of a severe nature, the progressive discipline can be accelerated to match the violation.” As a supervisor, Mr. Render was required to know and implement these policies.
(b) The lack of remorse
The trial judge found that Mr. Render’s lack of remorse and failure to understand the seriousness of his actions “put into question whether the employment relationship could be maintained.” While Mr. Render did apologize, he did not believe that what he did amounted to sexual harassment and still held that belief at trial.
This belief was further evidenced by his admission that in response to two colleagues asking Mr. Render what it was like to touch Ms. Vieira, Mr. Render offered them ten dollars to touch his hand
(c) The office culture as a mitigating factor
The trial judge refused to accept the “joking office culture” as a mitigating factor. He held that while Ms. Vieira may have participated in the jokes, that didn’t mean she consented to be touched on a sexual part of her body or to be demeaned in front of her co-workers. The trial judge held that even in a joking environment, there is a line that cannot be crossed and that the line includes physical touching without consent of a sexual and private part of someone’s body.
3. Deciding whether the dismissal was a proportionate response
The Court of Appeal held that the core question for just cause dismissal is “whether an employee engaged in misconduct that is incompatible with the fundamental terms of the employment relationship.”
The trial judge held that the onus is on the employer to prove that there were no other disciplinary measures that it could reasonably have taken and that dismissal was proportionate in all of the circumstances.
However, the Court of Appeal held that employers don’t have a standalone duty to consider alternative measures, provided that the result (i.e., the termination), is ultimately proportionate. The Court agreed with the trial judge’s finding that the employer considered other disciplinary measures which could not be implemented because retaining Mr. Render would send a message to other female employees that the impugned conduct was being condoned.
The Court of Appeal in Render accepted the trial judge’s finding that Mr. Render’s employment was properly terminated for cause. The lack of understanding of the seriousness, the sexual nature of the contact and the position of authority held by Mr. Render was determinative in finding that his employment was irreconcilable. This conclusion was made notwithstanding his spotless employment record and long-standing employment.
The Court concluded that although an overly familiar and inappropriate workplace atmosphere may be perceived as “all in good fun,” those on the receiving end of “jokes” may not view it that way. The Court of Appeal held that “when things go too far, as they did in this case, the legal consequences can be severe.”
This case reaffirms the contextual approach to assessing instances of workplace misconduct. Regardless of mitigating factors such as a “joking office culture,” the participation in this culture, and a long-standing spotless record, an employee in a position of authority involved in non-consensual touching, regardless of intention, may be terminated for cause.
The British Columbia Context
The Render decision is consistent with the case law on sexual harassment in the workplace as developed in British Columbia. The Court in Dhatt v. Kal Tire Ltd., 2015 BCSC 1177, reviewing McKinley, held that a single act of misconduct, while not giving an employer an absolute right to dismissal, can justify dismissal if the conduct causes an irreparable breakdown of the employment relationship.
The British Columbia Supreme Court has previously adopted the definition of “sexual harassment” in the workplace as any unwelcome conduct of a sexual nature that detrimentally affects the work environment. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. It has been held to be a demeaning practice that constitutes a profound affront to the dignity of the employees forced to endure.
The BC Employment Standards Tribunal, as in Render, has also previously held that a single occurrence of sexual harassment warrants termination for cause, regardless of the individual’s long-standing employment and spotless record. In response to a single sexually inappropriate text message sent to a female co-worker the Tribunal has upheld the conclusion that there are “some kinds of misconduct, including sexual harassment, that could not be overcome no matter how long and how good an employee’s service record is.”