July 15, 2022

By Brian Babcock

In our article Taking Sexual Misconduct Seriously, we looked at an Alberta court decision where a single incident of sexual misconduct in the workplace was interpreted to constitute sexual assault and therefore was serious enough to justify dismissal for cause. In that article, we predicted that an Ontario court would apply similar standards.

We did not expect to have our prediction validated so quickly.

THE CASE

If anything, the Ontario case of Render v. ThyssenKrupp Elevator (Canada) Limited takes a stricter view of sexual misconduct in the workplace than the Alberta decision. In that decision, the trial judge had found that a slap on a female co-worker’s buttocks might not be sexual assault, but was still grounds for dismissal in all of the surrounding circumstances. The appeal court upheld his decision.

THE LAW

The court reaffirms that the core question for determining whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship, and therefore grounds for dismissal, is whether the conduct is sufficiently serious that it strikes at the heart of the employment relationship.

This is a factual inquiry that requires that the trial judge:

1. determine the nature and extent of the misconduct;
2. consider the surrounding circumstances; and
3. decide whether dismissal is warranted (i.e. whether dismissal is a proportional response).

In Render, the wrongdoer was a long-time employee in a management position. Although he was not the direct supervisor of the employee who was the object of his misconduct, he was one of the managers responsible for implementing the employer’s anti-harassment and anti-discrimination policy, and his conduct was a violation of that policy.

The employer was concerned that anything short of dismissal would send a message to other employees that the misconduct was being condoned. Whether or not it was sexual assault, it was non-consensual touching of a private part of the body. The employer could not condone it or be seen to condone it. Both the trial judge and the Court of Appeal agreed.

The courts also considered the “boys will be boys” argument, and the suggestion that the actions fit within the joking office culture.

As the trial judge pointed out, the Court of Appeal strongly denounced such attitudes in a 1998 decision. In Render, the Court of Appeal states clearly that in 2022 and beyond such workplace atmospheres can no longer be tolerated.

THE TAKEAWAYS

It is time to recognize that those on the receiving end of personal “jokes” do not view it as welcomed or appropriate and that every workplace should be based on mutual respect among coworkers. This atmosphere of mutual respect should naturally generate appropriate boundaries of behavior and send the signal that those boundaries cannot be crossed.

• If your workplace has not already instituted an anti discrimination anti harassment and anti discrimination policy, it is past time to do so.
• It is also time to educate all employees at all levels from the frontline to senior management about the importance of this policy.
• The policy should be strictly enforced.
• Sexual misconduct in the workplace is one of the most serious forms of misconduct possible. It does not have to constitute sexual assault or sexual harassment to be grounds for dismissal for cause.
• Only in very rare circumstances will mitigating factors come into play to justify lesser punishment.
• This is because a strong message must be sent to workers at all levels that the employer is serious about maintaining an appropriate workplace atmosphere.

HOW WEILERS LLP CAN HELP YOU

The employment law team at Weilers LLP has the experience and knowledge to assist employers with all stages of this process from drafting and implementing policies to investigating allegations of misconduct and recommending appropriate disciplinary action if you are sued for wrongful dismissal we are here to represent you with a strong defence. If you have questions or concerns in this area, please contact us to discuss whether Weilers LLP may be the right lawyers for you.