Single Act  of Sexual Harassment Constituted Just Cause 

Conduct in the workplace that was once condoned is now recognized for what it has always been – sexual harassment.  This type of conduct will not be tolerated in the Ontario workplace and the offenders may be subjected to disciplinary action which may include termination of employment with cause. 

The Ontario Court of Appeal in Render v. ThyssenKrupp Elevator (Canada) Limited agreed that the company proved just cause to terminate an employee in a management position with 30 years of service.  The company had introduced an anti-harassment and anti-discrimination policy which stated the employer had zero tolerance for this type of conduct, just 8 days prior to the incident.

The employee was fired as a result of slapping a female co-worker’s buttocks.  The court did not find the “slap” was  accidental because he had only asserted that defence for the first time several days after the incident. The court also found that his remorse was not genuine. The fact that he apologized several times was undermined by his own actions in filing a complaint against her after she had filed a complaint against him for sexual harassment. Furthermore, his comment to his 2 co-workers about charging $10.00 to touch his hand, together with his evidence at trial, demonstrated that he would not acknowledge the seriousness of his actions.

The Ontario Court of Appeal agreed with the trial judge and upheld the termination for just cause although they found that the company did not meet the more onerous test under the Ontario Employment Standards Act because it was not pre-planned and therefore he was entitled to his minimum statutory entitlements under the ESA. Given there was no evidence of the size of the company’s payroll which is relevant to statutory severance pay under the ESA, he was only entitled to 8 weeks termination pay under the ESA. 

 In reaching it’s decision to terminate the employee as opposed to imposing another type of disciplinary action, the company took into account the seriousness of the conduct, namely the non-consensual touching of a private part of the body, and concluded that it had to terminate the employee for cause otherwise it would be condoning the conduct or being perceived as condoning the conduct.