In this recently released decision, the Ontario Court of Appeal upheld the dismissal for cause of a 30-year employee in managerial role after he slapped a female accounts manager in the buttocks during some friendly office banter amongst co-workers. The office banter was commonplace, and sometimes included male employees tapping each other on the buttocks with “good game” type sentiments, emulating a locker room atmosphere. This did not happen, however, with female employees, but in this one instance it did occur. Although the female employee was up for gags and some cheeky dialogue with her fellow employees, the physical touching of a sexual part of her body was a line drawn too far, and she made it known instantly. Following an investigation, the manager was fired for cause solely on this one incident.
A lot of factors went into the result, such as:
- the appellant was in a supervisory role;
- the employer had an anti-harassment and zero-tolerance policy, which was fresh in the dismissed employee’s mind, having been communicated to him just eight days before the incident;
- the trial judge found that the appellant did not appreciate the seriousness of his action, even suggesting up to the trial that what he did was not sexual harassment;
- The trial judge concluded that the employee’s lack of contrition and failure to understand the seriousness of his actions put into question whether the employment relationship could be maintained.
- the joking office culture, that included inappropriate personal “jokes,” even against the dismissed employee, did not excuse the conduct;
Perhaps the strongest appeal argument was whether the dismissal for cause was proportionate: in other words, were there alternatives? The court accepted that there were no reasonable alternatives. In this regard:
- Retaining the dismissed employee would send a message to other female employees that the impugned conduct was being condoned, especially for an employee in a supervisory role fastened with the responsibility to foster and promote the company’s Anti-Harassment and Anti-Discrimination Policy;
- Treating other employees more leniently in the past was not a relevant factor since those examples were with non-managerial employees;
The appeal court’s summation at paragraph 70 sums things up:
“[70] I would also add that this was a most unfortunate situation that arose out of an overly familiar and, as a result, inappropriate workplace atmosphere that was allowed to get out of hand. As this court said in Bannister almost 25 years ago, it is a workplace atmosphere that can no longer be tolerated. Although some may perceive it to be benign and all in good fun, those on the receiving end of personal “jokes” do not view it that way. And when things go too far, as they did in this case, the legal consequences can be severe. Every workplace should be based on mutual respect among co-workers. An atmosphere of mutual respect will naturally generate the boundaries of behaviour that should not be crossed.
Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310
https://www.canlii.org/en/on/onca/doc/2022/2022onca310/2022onca310.html