Termination with cause is where an employer terminates an employee without either notice of the termination or compensation in lieu of notice. In such circumstances, the onus is on the employer to establish that the employee’s misconduct or misbehaviour in the workplace was sufficiently severe so as to warrant dismissal without compensation or appropriate notice.

This is different from the more common type of termination – termination without cause – in which the employer does not assert that it has a legal justification for terminating the individual’s employment without notice or compensation in lieu of that notice.

This article looks at the recent decision of the Court of Appeal for Ontario in Render v ThyssenKrupp Elevator (Canada) Limited. In this case, a male managerial employee claimed that he had been wrongfully dismissed after he was terminated with cause after he slapped a female co-worker on the buttocks.

Plaintiff fostered a friendly and joking office environment to reduce stress

In 1984, the plaintiff employee started working for his father’s elevator company. He later became the president of the company. It was sold to the defendant in 2002, and the plaintiff became the operations manager of the Mississauga office.

According to the evidence, there was a very social atmosphere at this office. The plaintiff described it as a friendly and joking environment that he fostered to reduce stress.

This atmosphere included inappropriate jokes. Some of the male workers would tap each other on the buttocks and say, “good game.” The plaintiff and the co-worker that he slapped also engaged in-jokes and banter. For example, the co-worker teased the plaintiff that he was short. The plaintiff also engaged in inappropriate behaviour. On one occasion, the co-worker asked the plaintiff if he would like her to bring anything to him at his hotel, and he responded, “That’s a loaded question.” She testified that she participated in the joking and bantering so that she would not be ostracized and so that she would be respected.

Plaintiff slaps female co-worker on the buttocks and is terminated with cause

In 2014, the defendant introduced a new anti-harassment and anti-discrimination policy. It provided that sexual advances and touching are considered sexual harassment and that employees engaging in such conduct would be subject to appropriate discipline, up to and including termination.

Eight days after the defendant introduced this policy, the incident occurred. Versions of events differed, but the trial judge found that the co-worker made a joke about the plaintiff’s height in the presence of other workers. The plaintiff went down on his knees, crouching in front of her with his face close to her breasts for two to three seconds. He then slapped the co-worker on the buttocks. The trial judge said:

I am satisfied that the act of slapping [the co-worker’s] buttocks was an act that attacked her dignity and self-respect. This type of conduct is unacceptable in today’s workplace.

A human resources investigation followed. Six days after the incident, the plaintiff was terminated without receiving severance, termination or vacation pay. He sued the employer, claiming that the termination was without cause.

Trial judge finds employer was entitled to terminate plaintiff with cause

The trial judge examined the particular facts and circumstances and considered the nature and seriousness of the plaintiff’s conduct to determine whether it was sufficiently egregious so as to violate or undermine the employment relationship.

The trial judge held that the termination was a proportionate response to the incident after considering the following facts:

• The plaintiff was a supervisor responsible for ensuring a safe work environment. He was in a position of authority over the co-worker.
• The anti-harassment policy was a zero-tolerance policy communicated to employees, including the plaintiff, just prior to the incident.
• The plaintiff did not appreciate the seriousness of his action, despite apologizing.

The trial judge dismissed the plaintiff’s case, rejecting the office culture as a mitigating factor:

Although [the co-worker] may have participated in the jokes, this does not mean she consented to being touched on a sexual part of her body. Also, she did not consent to being demeaned in front of her co-workers. Even in a joking environment there is a line that cannot be crossed.

Court of Appeal agrees but requires employer to pay statutory termination pay because the slap did not constitute wilful misconduct

The Court of Appeal agreed that the plaintiff’s conduct justified termination with cause.

However, Justice of Appeal Feldman found that the plaintiff was entitled to his statutory entitlements under the Employment Standards Act 2000. Her Honour looked at the provisions in the Termination and Severance of Employment Regulation 2001, which disentitle employees to termination and severance pay in certain circumstances, including when an employee “has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”.

Her Honour found that the slap did not constitute wilful misconduct, which is a standard requiring more than just cause for dismissal at common law. In order to constitute wilful misconduct, the employee “must do something deliberately, knowing they are doing something wrong.” Her Honour decided that the plaintiff’s conduct did not rise to this level because the conduct was not pre-planned; it “was done in the heat of the moment in reaction to a slight.”

As a result, the plaintiff was awarded eight weeks of statutory termination pay.

Contact Grosman Gale Fletcher Hopkins LLP in Toronto for Guidance on Employee Termination

If you are an employer or an employee going through the termination process, contact the labour and employment lawyers at Grosman Gale Fletcher Hopkins LLP. We have helped workplace parties with their most challenging employment-related matters for more than three decades. We assist employers in managing risk when seeking to terminate employees without cause. We also help employees secure all their entitlements in the event of termination.

We are one of Canada’s most recommended labour and employment law firms. If you need guidance with a workplace-related issue, contact us online or at 416.364.9599.