Sexual harassment, regardless of form or intent, has no place in a modern workplace. However, there is still a potential issue of whether the appropriate sanction for sexual harassment is termination for just cause. Over the past decade, courts have increasingly found that sexual misconduct does amount to just cause termination. We highlighted this trend in a previous blog post. In a more recent case, Render v. ThyssenKrupp Elevator (Canada) Limited, the Ontario Court of Appeal again upheld the just cause termination of manager who inappropriately touched a co-worker, underlining again the seriousness of workplace sexual harassment.
Sexual Harassment as Just Cause
In Render, joking and bantering were common in the workplace and would sometimes be sexist or otherwise inappropriate in nature. Both the manager and the victim engaged in such behaviour, although the victim testified that she did so to avoid being ostracized and so that she would be respected. However, on the day in question, while the manager and the victim were exchanging sexual jokes in front of other employees, the manager smacked the victim on the buttocks. The manager claimed it was a mistake and that he was aiming for her hip. He nonetheless admitted that he told some other employees afterwards that “for 10 bucks you can shake my hand”, which cast doubt on this story. The company investigated the matter and terminated the manager for cause.
The Court of Appeal upheld the termination for just cause, finding that the manager’s misconduct was incompatible with the terms of his employment. The Court took into consideration the employer’s Anti-Harassment and Anti-Discrimination Policy, the manager’s authority and role modelling as a manager that was responsible for enforcing the policy, the sexual nature of the contact, and the manager’s apparent lack of appreciation of its seriousness: the trial judge had found that, although he apologized, the manager still firmly believed that what he did was not sexual harassment.
Wilful Misconduct vs. Just Cause
Interestingly, while the Court found that the conduct amounted to common law just cause, it was not enough to establish “wilful misconduct” for the purpose of Ontario’s Employment Standards Act, 2000 (the “ESA”). Ontario employees are entitled to termination pay and, where applicable, statutory severance pay, unless they fall under the narrower ESA exception for “wilful neglect of duties” or “wilful misconduct”. The Court noted that “wilful misconduct” is narrower than just cause. The misconduct must be intentional or deliberate. The Court stated that, in this case, that the conduct was not accidental, but was not preplanned thus not “wilful”. For that reason, the Court awarded the manager his ESA termination pay.
Cases like Render and Hucsko have established that sexual harassment can amount to just cause under the right circumstances. These cases, however, shared similar key facts that formed the foundation for the decision:
- the harassers held managerial positions so were held to a higher standard. Their conduct vis-à-vis a subordinate was clearly more problematic than that of a peer;
- the employers had anti-harassment policies and did training on them; and
- the harassers were unapologetic or gave insincere apologies and thus did not appreciate the seriousness of their actions.
In cases where the perpetrator was a peer or subordinate of the victim, where there was no effective workplace policy and/or the perpetrator was a first time offender who showed sincere remorse, the outcome on just cause might be different i.e. a court might find that something less than dismissal was a more appropriate sanction.
We recommend that employers ensure that their workplace harassment and bullying policies are up to date, meet all applicable statutory standards and include on-boarding and then regular refresher training. If your organization requires assistance with your policy, training or a complaint or if you want more information on this topic, you can contact us at: