Last week Mike MacLellan blogged on a case where a unionized employee was terminated for sexually harassing another employee. This week we’re reviewing a termination case that involved a sexual assault in a non-unionized environment. In Render v ThyssenKrupp Elevator (Canada) Limited, 2019 ONSC 7460, an employee with 30 years of service was terminated for cause after the employer investigated and confirmed that he slapped a female co-worker’s buttocks. The employee brought a wrongful dismissal action and argued that the employer did not have just cause to terminate his employment. He claimed that the touching was accidental and also argued that the termination of his employment was not proportionate or in accordance with the company’s progressive discipline policy.

The Court dismissed the plaintiff’s action and determined that the employer had just cause to terminate the plaintiff’s employment. The Court reiterated that the principle of proportionality governs whether an employer has cause to terminate an employee’s employment. This means that the Court must strike a balance between the severity of an employee’s misconduct and the sanction imposed. The Court reviewed the aggravating and mitigating factors that were present and found that termination was a proportional response to the plaintiff’s misconduct. The only mitigating factor present was the employee’s long service with the company and clean disciplinary record. However, this was outweighed by a number of aggravating factors, including the seriousness of the plaintiff’s misconduct, the plaintiff’s position of authority in the office, the plaintiff’s failure to appreciate the seriousness of his actions or show remorse, and that the company had communicated its zero tolerance anti-harassment policy eight days prior to the incident. Notably, the court rejected the plaintiff’s argument that the joking culture at the office was a mitigating factor. The Court found that although the female employee participated in the jokes, this did “not mean she consented to being touched on a sexual part of her body” (para 106)

The Court concluded that

Although Mr. Render was a long-standing employee with a previously good employment record, I am satisfied that his conduct, both in slapping Ms. Vieira on the buttocks and his lack of understanding and remorse following the incident, is not reconcilable with sustaining his employment (para 113).

Although sexual assault is an egregious form of workplace misconduct, employers should keep in mind that termination is still not automatic in these instances. Employers must appropriately investigate sexual assault/harassment complaints, and consider whether termination is a proportional response in the circumstances.

Often it is not easy to determine whether certain conduct occurred in the workplace, and if so, how to address it.  Employers should seek appropriate support either to investigate an incident, or assess the proper response. CCPartners has a team of experienced investigators and lawyers to help you determine your next steps.

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