May 31, 2022  By John Hyde

Slapping Female Buttocks in Heat of the Moment is not Wilful Misconduct

In a recent decision from the Ontario Court of Appeal ("ONCA") in Render v. ThyssenKrupp Elevator (Canada) Limited ["Render"], the ONCA explained the difference between an employee being dismissed at common law for "just cause" and wilful misconduct under the Employment Standards Act, 2000 ("ESA"). More specifically, the ONCA clarified the threshold to establish "wilful misconduct" under the ESA and provided guidance on how sexual harassment should be assessed in the workplace.


The employee, Mr. Mark Render, was the operations manager for approximately 30 years before being dismissed for cause by his employer, ThyssenKrupp Elevator ("TKE"). The employee had no discipline or performance issues over his 30-year career.

The single incident involved Mr. Render and a female co-worker, Ms. Linda Vieira, who alleged that Mr. Render put his face close to her breasts for two to three seconds, slapped her buttocks, and said "good game" after his hand came into contact with her buttocks. The employer investigated the single incident and determined that Mr. Render’s conduct amounted to sexual harassment. Following the investigation, Mr. Render was dismissed for cause, and he was not given any severance. Shortly after, he sued TKE for wrongful dismissal.

It is important to note that TKE’s office had an informal atmosphere, where inappropriate jokes and banter were commonplace. Mr. Render and Ms. Vieira would routinely engage in banter. Moreover, some of the male employees would occasionally tap each other on the buttocks and say, "good game," as if they were football players on the field or in the locker room. The women employees, including Ms. Vieira, were not included in this activity.

Issues on Appeal

The employee argued that he should have received statutory termination pay and severance pay in accordance with the Employment Standards Act, 2000. The ESA establishes a higher threshold for an employer to disentitle an employee from their statutory termination pay, compared to the threshold established at common law.

Notably, under ESA regulations, an employee may only be disentitled to termination pay for misconduct if, among other reasons, the 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." The common law, on the other hand, provides for a broader range of employee conduct that would give rise to a dismissal for just cause. 


The ONCA upheld the termination for cause, but found that the employee was still entitled to termination pay under the ESA since his actions did not rise to the level of "wilful misconduct". The ONCA stated that an employer must show the misconduct was intentional or deliberate, and the conduct must be preplanned to be considered "wilful".

The Bottom Line

The Render decision reminds employees that a single incident of sexual harassment may lead to a justifiable termination of employment for cause. That said, the decision appears to place significant emphasis on behaviour being "preplanned" to qualify as "wilful misconduct". In effect, it requires an employer to consider an individual’s mindset and their subjective prior intention to commit a wrongful act (akin to a criminal law standard).

This premeditated requirement may shield employees who steal, lie, or commit violent acts in the workplace "in the heat of the moment." Nonetheless, employers must carefully examine the circumstances of sexual harassment (and other forms of misconduct) to determine whether the conduct can be categorized as "wilful." If the misconduct was not premeditated, the just cause termination may still be warranted, however the terminated employee would be entitled to minimum notice or pay in lieu of notice under the ESA.

The decision also shows the importance of employers establishing and enforcing appropriate standards of behaviour in the workplace. Employers should review their harassment and discrimination policies to ensure they are compliant with any provincial requirements and ensure their employees are adequately trained on such policies. In Render, the fact that the employer had communicated its policy of zero tolerance for harassment and discrimination to its employees, including Mr. Render, played a significant role in the ONCA’s decision to uphold the termination for cause.

At Hyde HR Law, we offer expert services in reviewing, revising, and drafting workplace policies, such as anti-harassment and anti-discrimination policies. Please do not hesitate to contact us.

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