In Render v. ThyssenKrupp Elevator (Canada) Limited Group, the Ontario Court of Appeal redefined wilful misconduct under the Employment Standards Act and confirmed the modern day approach to assessing sexual harassment in the workplace.

The Decision

Mark Render was terminated for cause after slapping a female co-worker on her behind. The trial judge found that the incident caused a breakdown in the employment relationship that justified his dismissal for cause and the denial of all common law and statutory entitlements. Render appealed.

The Ontario Court of Appeal confirmed that the employer had just cause to terminate Render’s employment. But it also found that his conduct was not wilful misconduct. Thus, the Court found that Render was entitled to his minimum entitlements under the Employment Standards Act, but not common law notice. Since the Court had no evidence that ThyssenKrupp’s payroll exceeded $2.5M, Render was only entitled to termination pay and not severance pay.

In reviewing the statutory term of wilful misconduct, the Court reiterated the well-known principle that proving wilful misconduct is more onerous than just cause at common law. Although this was always a well-known concept, the Court of Appeal introduced what looks like a new element that employers need to establish—the misconduct must be preplanned and not just intentional. Here, the Court found that Render’s conduct was performed in the heat of the moment, in reaction to an insult. Thus, while ThyssenKrupp had just cause to terminate Render’s employment, disentitling him to any common law notice, it did not establish that there was wilful misconduct.

Key Points

Employers now have the added burden of proving that an employee’s misconduct was both intentional and preplanned to meet the threshold of wilful misconduct.

The Court’s decision also confirms the modern view that an employer should not look at sexual harassment misconduct on a spectrum to determine whether it has cause to terminate an offender’s employment. The trial court determined that whether an act is sexual harassment, sexual assault, or common assault, the purpose is the same in that it is to assert dominance over an individual and demean or embarrass them in front of others. The Court of Appeal upheld this aspect of the trial court’s decision, showing the lack of tolerance courts will have for misconduct of this nature.

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