The claim that “it is all in good fun” or “it was just a joke” should never be made in relation to sexual harassment in the workplace. Unfortunately, many workplaces tolerate a work environment that makes it seemingly okay to make inappropriate comments and jokes while terming it simply as playful banter between employees. There is nothing inherently wrong with a friendly team that enjoys a light environment, but it is a slippery slope when jokes become targeted at individuals in the workplace or pass the line from being friendly to offensive. These kinds of work environments can make some employees very uncomfortable, or create some undue pressure to participate so as not to face being left out or looked over in the workplace. This can be especially difficult to navigate for female employees.

A recent decision of the Ontario Court of Appeal provides a very clear example of when a joking environment can go too far and lead to incidents of sexual harassment in the workplace. Render v. ThyssenKrupp Elevator (Canada) Limited 2022 CarswellOnt 5232, 2022 ONCA 310 confirms that sexual harassment is serious, even if it is an isolated incident, and will not be tolerated. The Court makes that quite clear in confirming that even one event of sexual harassment can be just cause for termination. This decision also helps to flesh out when minimum entitlements under the Employment Standards Act (ESA) should be provided even if just cause has been established by assessing the legal standard of wilful misconduct under the ESA in relation to the common law.

Facts and Background Information- Render v ThyssenKrupp Elevator (Canada) Limited

Mr. Render was in a management role for an elevator company in Mississauga. The office environment in which he worked was characterized as very social and employees often exchanged jokes and some banter of an inappropriate nature. The employees were mostly men with only three female co-workers in the relatively small office. There was an Anti-Harassment and Anti-Discrimination Policy in place that was expected to be enforced by members of management, including Mr. Render.

Ms. Vieira was an employee in this office and was sometimes under the supervision of Mr. Render. She had participated in the joking atmosphere at times but had intentionally shut down any jokes that she viewed as crossing the line. On one occasion, while 6 other male co-workers were present, Mr. Render and Ms. Vieira were engaged in a group conversation and jokes were being exchanged. At one point in the conversation, Mr. Render was demonstrating a joke with actions and brought his face mere inches from Ms. Vieira's chest. Soon after, when the group began to disburse, Mr. Render reached out and playfully slapped Ms. Vieira's buttocks and said “good game”. Her response was one of serious upset and shock. She said that it was not okay to touch her in that way. Mr. Render did not apologize and was later seen and heard joking about the occurrence with other male collogues offering to let them shake the hand that had slapped Ms. Vieira for $10. Reports were filed and investigations were conducted. The facts from both sides were slightly blurred, but in the end the trial judge determined that this one incident of sexual harassment was indeed enough to justify a just cause dismissal. The trial judge was clear to state, “although Ms. Vieira may have participated in the jokes, this does not mean she consented to being touched on a sexual part of her body. Also, she did not consent to being demeaned in front of her co-workers. Even in a joking environment there is a line that cannot be crossed, and that line includes physical touching without consent of a sexual and private part of someone's body. There is no place for any conduct which could result in a person feeling demeaned or disrespected.” (Render v. ThyssenKrupp Elevator (Canada) Limited, 2019 ONSC 746 at para 106). The trial judge was particularly concerned with the lack of remorse and a true apology, or belief that an apology was needed, by Mr. Render.

This decision was soon appealed by Mr. Render.

Legal Analysis of the Court of Appeal

Through this case, we see some legal concepts arise that are worth discussing as the Court of Appeal provides some clarity and solid direction in these areas.

Firstly, we note that the Court confirmed that even one incident of harassment in the workplace is enough to reach the threshold of just cause for termination. This is important because it shows how serious harassment, and sexual harassment, in the workplace really is and how there is no room nor tolerance for such behaviour in today's organizations. Harassment does not need to occur multiple times for it to be deemed serious and worthy of dismissal. Of course, each case needs to be analyzed with a view to its specific circumstances and not all incidents will result in termination, but it shows the importance of proportionality. Discipline may be a better approach in some cases, but we learn here that not all cases need repeat occurrences to be deemed serious enough to warrant the capital punishment of the employment law world - dismissal for just cause.

Secondly, the Court helps us to flesh out the differences between some legal standards. As stated, the misconduct did qualify for a just cause dismissal at common law, however, the Court of Appeal determined that the conduct did not constitute a standard called “willful misconduct” under the Employment Standards Act. Willful misconduct can be defined as wrongful, improper or unlawful behaviour of an employee that is on purpose. Willful misconduct is sometimes assessed to determine if employees under provincial regulation in Ontario who have been dismissed are indeed disentitled to their minimum ESA standards upon dismissal including termination and severance pay. Typically, when an employee is terminated for just cause then the employer does not need to pay termination or severance pay to the employee. However, in this case Mr. Render argued that he was entitled to his minimum entitlements upon termination because his behaviour did not constitute willful misconduct. This lesser-known concept is linked in the definition of a “prescribed” employee in the termination provisions of the Employment Standards Act (Section 55). A prescribed employee is not entitled to notice of termination or termination pay under the Act. A further look into the regulations (O.Reg. 288/01) will show that a prescribed employee is defined, in part, “as an employee who is guilty of willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer” (O.Reg. 288/01, s. (1)). The Court of Appeal agreed that Mr. Render was not a prescribed employee because it could not be proved that he had the intention to sexually harass Ms. Vieira. The Court explained that the conduct did not reach the level outlined in the regulations so Mr. Render was entitled to his Employment Standards Act minimums, that being termination pay. Severance pay was not awarded because it had been left out of the pleadings.

We see here that the common law just cause threshold is indeed high and difficult to prove, but the ESA willful misconduct threshold is even higher to prove. Mr. Render was still in the wrong and was terminated with just cause having to suffer the attached consequences of such, but he was entitled to be paid his minimum entitlements. In most cases of general employee misconduct leading to just cause dismissal, this issue would not have been examined in depth, but because of the nature of the sexual harassment and its lack of clear intention or willful misconduct, the Court was prudent in assessing this additional standard under the ESA.

This case provides a very good analysis of some complicated legal issues, and helps reiterate the fact that any type of harassment or sexual harassment is serious and will not be tolerated. Employers should be mindful to ensure the environment of their organizations don't foster a space where jokes and inappropriate banter can quickly turn into issues of harassment, sexual harassment or even violence.