Single Act of Sexual Misconduct Cause for Termination (But Not Willful Misconduct)
In the recent decision of Render v ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, the Ontario Court of Appeal upheld the decision to terminate a manager for cause for a single act of sexual misconduct.
Facts:
The Plaintiff was an operations manager with 30 years of service. While gathered in an office with six other employees, the Plaintiff crouched down to his knees and put his face near a female coworker’s breasts. As he was getting up from his knees, he made a sweeping gesture with his hand and smacked her on the buttocks.
The female employee immediately expressed that this was inappropriate behaviour and reported the incident. The company conducted an investigation and decided to terminate the Plaintiff for cause.
Trial Decision:
The Plaintiff filed a lawsuit for wrongful dismissal and punitive damages. The trial judge relied on a number of factors to uphold the termination for cause, including:
The Plaintiff was a senior manager that was responsible for implementing the company’s anti-harassment policy
The Plaintiff’s conduct was sexual in nature and clearly offensive
The Plaintiff failed to appreciate the seriousness of his conduct
Court of Appeal Decision:
The Court of Appeal agreed with the trial judge and upheld that the single act of misconduct was sufficient cause for the termination. This decision demonstrates a notable shift in the Court’s assessment of termination for cause, which generally requires progressive discipline. Both levels of court have used to this case to clearly condemn sexual misconduct and emphasize the severity of such behaviour.
Although the Court of Appeal upheld the dismissed for cause which disentitled the Plaintiff from common law damages, it went on to find that the Plaintiff was entitled to statutory termination entitlements because the employee was not guilty of “willful misconduct”. Willful misconduct is the standard in the Ontario Employment Standards Act required to disentitle an employee from a statutory termination package.
The Court of Appeal recognized that the test for willful misconduct is much higher than just cause and stated:
“Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. Rather, the employer must show that the misconduct was intentional or deliberate. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. It is, to put it colloquially, being bad on purpose.”
The Court of Appeal found that although the Plaintiff’s conduct was serious, it was not preplanned or deliberate. The employee was therefore awarded statutory termination pay.
Takeaways for Employers:
Although it is still not easy to establish just cause for termination, employers may be able to rely a single act of misconduct if it is severe enough.
Even if an employee is terminated for cause (and therefore disentitled from common law notice), the employee may still be entitled to statutory termination payments if the conduct was not willful or deliberate.
If you have any questions about an upcoming termination, please do not hesitate to contact us.
