Sexual harassment is one of the most serious forms of workplace misconduct. While acts of sexual harassment can occur on a spectrum of severity, a single incident of sexual harassment can warrant termination. This is especially the case if the employee lacks remorse and responsibility. In Render v ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, the Ontario Court of Appeal upheld the termination of a 30-year employee for a single incident of sexual harassment.

Background

The employee held a managerial position at ThyssenKrupp Elevator (the “employer”). He had 30 years of service, no disciplinary record and no performance issues.

The workplace had a social atmosphere which included humour and bantering as well as inappropriate jokes. One day, while in a group of employees, a female employee teased the employee about his height. He responded that he was short and crouched down with his face close to her breasts. At the time, he was approximately 12 inches from her and remained like that for 2 – 3 seconds.  As he was getting up from his crouching position, he made a sweeping gesture with his hand and slapped the female employee’s buttocks. She immediately told him it was inappropriate to touch a sexual part of her body.

The employee told the female employee that he had intended to slap her hip. He apologized and told her that it was a joke with no sexual undertones. She claimed that his apology was insincere. He was later observed mimicking the incident to other coworkers.

The female employee filed a complaint with human resources against the employee for slapping her buttocks. He responded by filing a complaint against her over instances where she had jokingly punched him in the arm. He was terminated as a result of the conduct that lead to her complaint.

The Decision

The termination was upheld at trial and again on appeal. Although the employee had no prior disciplinary record, his lack of remorse and failure to understand the seriousness of his actions meant that the employment relationship could not be maintained.

The trial judge noted that a mitigating factor was his lengthy 30-year career, clean disciplinary record and no performance issues. The trial judge rejected that the joking office culture was a mitigating factor because, although an employee may engage in office banter, that does not mean they consent to being physically demeaned and disrespected.

The matter was mired with aggravating factors. The employee was a supervisor in a position of authority who was responsible for ensuring a safe work environment. His behaviour after the incident was not contrite and the apology he offered was found to be insincere. He had filed a retaliatory complaint and had made jokes about the incident. He believed, both during the incident and at trial, that his conduct did not amount to sexual harassment because he did not intend for the slap to be sexual.

Statutory Termination Pay

While the employer had cause for termination, the court held that the employee should have been awarded his statutory entitlements. Under Ontario statute, employees with more than eight years of service are entitled to eight weeks’ termination pay unless they are guilty of wilful misconduct, disobedience or neglect of duty. The incident did not fall into any of these three categories. Although the employer had just cause disentitling the employee from reasonable notice at common law, he was still entitled to his statutory termination pay.

Litigation Conduct

For the duration of the trial, the employer retained a publicist who issued inflammatory and sensationalist press releases. This had the effect of breaching the witness exclusion order and tainting the evidence of a number of witnesses. The court held that the employer’s litigation conduct was so egregious that the trial judge reduced their cost entitlement by 50%, and the Ontario Court of Appeal further reduced it to zero. But for the employer’s litigation conduct, it would have been entitled to costs of nearly $150,000.

Key Takeaways for Employers

Sexual harassment is a serious form of misconduct. This case reinforces that an employee may be terminated for cause for a single incident of sexual harassment, even if the employee has a long tenure, an unblemished disciplinary record, and a positive performance record. It further illustrates that just cause for termination does not necessarily negate statutory entitlements for termination pay. Finally, the case is a helpful reminder that the financial rewards for successful litigation may be nixed if the party engages in litigation misconduct by sensationalizing the matter to the media.

This article was written with contributions from Cox & Palmer’s Matt LeBlanc, Articled Clerk.