In a recent decision, the Ontario Court of Appeal upheld the termination for cause of a manager with 30 years of service for smacking a female co-worker’s buttocks. The decision joins a line of caselaw confirming the seriousness of inappropriate physical contact and a recognition of the changing attitudes towards sexual misconduct in the workplace.
The plaintiff employee had worked for the company for 30 years and held the position of Operations Manager. The incident took place in an office with 6 employees present. At some point while the employees were joking amongst themselves, the plaintiff crouched down to his knees and placed his face near a female co-worker’s, breasts for two to three seconds. As the plaintiff was getting up from his knees, he made a sweeping gesture with his hand and smacked her on the buttocks.
The co-worker immediately rebuked the plaintiff and told him his actions were inappropriate. She continued to report the incident to her manager and then to Human Resources. The company conducted an investigation and the decision was made to terminate the plaintiff for cause.
The plaintiff filed a claim for wrongful dismissal and punitive damages against the company for his termination. He did not deny that he had touched his female co-worker, but described it as accidental and without any sexual component, such that termination was disproportionate. The trial judge found that termination for cause was warranted and dismissed the plaintiff’s claim. The plaintiff appealed the trial decision.
What did the Court of Appeal Decide?
The Court of Appeal noted that the question at the core of just cause dismissal is whether an employee had engaged in misconduct that is incompatible with the fundamental terms of the employment relationship.
The company showed evidence at trial that it considered the possibility of other disciplinary measures, but determined that they were not appropriate because retaining the plaintiff would send a message to other female employees that the misconduct was condoned. The trial judge agreed.
The Court of Appeal highlighted that the plaintiff was a manager, that he was responsible for implementing the company’s anti-harassment and anti-discrimination policies, the sexual nature of the contact, and the plaintiff’s lack of appreciation of the seriousness of his conduct in the workplace context. The Court of Appeal found no error with the trial judge’s finding that the plaintiff had demonstrated a lack of remorse and that his actions were not an accident, as he maintained.
Ultimately the Court of Appeal agreed with the trial judge’s assessment that the company was entitled to terminate the employee for cause, despite his long and discipline-free history with the company.
Whether termination is justified in the circumstances is decided on a case-by-case basis considering the factual circumstances. However, this decision provides an important precedent for employers in establishing just cause where employees have crossed the line of appropriate physical contact in the workplace. The decision also marks a noted shift in treatment of the seriousness of sexual touching and misconduct in the workplace. The trial judge and Court of Appeal both showed a willingness to condemn inappropriate behaviour, particularly for supervisors tendering half-hearted apologies.
If you have any questions regarding this subject, please contact the author or your regular Fasken lawyer.
 Render v ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310