Experts say judges are moving away from the idea of a 'spectrum' of misconduct, and instead treating all incidents as serious in nature.Colin Perkel/The Canadian Press
Ontario’s top court has upheld the firing of a 30-year employee for a single incident in which he slapped a co-worker on the buttocks, sending a message that sexual misconduct that might once have been deemed at the lower end of the spectrum is no longer tolerable.
In a 3-0 ruling Wednesday, the Ontario Court of Appeal said the consequences can be serious when colleagues in seemingly benign, friendly workplaces take things too far, and demean others.
The decision is the second in eight months from a Canadian appeal court to make the point that unwanted sexual contact may amount to sexual assault, and that there is no minor form of sexual assault in the workplace. A third ruling, involving sexual comments, made a similar point in November that infractions once seen to be less serious may now justify termination.
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Paul Boshyk, an employment lawyer who practices in Ontario and Alberta, said judges are moving away from the idea of a “spectrum” of misconduct, and instead treating all incidents as serious in nature.
“Historically, the courts have looked at sexual harassment in the workplace as something that exists on a spectrum,” Mr. Boshyk, who was not involved in the case, said. “Single incidents, unless they involved serious sexual contact, typically some form of serious sexual assault, would almost always fall at the lower end of the spectrum.”
The incident at the centre of Wednesday’s decision took place in the small, sociable office of ThyssenKrupp Elevator (Canada) Ltd., in Mississauga, just eight days after it introduced a zero-tolerance anti-harassment and anti-discrimination policy. The 13 employees – 10 men and three women – were accustomed to jokes and banter. The woman whose buttocks were slapped had once given the man a party gift of an apron with a muscular man in underwear on it.
But on Feb. 28, 2014, in front of several witnesses, most of them joking and laughing, operations manager Mark Render slapped a co-worker on the buttocks. He said at trial it was accidental and that he meant to tap her on the hip and she moved, but the lower-court judge who heard the case found it was intentional. Mr. Render later told a colleague, by his own admission, that “for 10 bucks you can shake my hand.” He apologized to the co-worker afterward, but she felt it was insincere. She testified she felt humiliated by the incident.
Although Mr. Render had a spotless employment record, the company fired him for cause after the woman complained to human resources. Ontario Superior Court Justice William Chalmers upheld the firing, saying that whether it was a sexual assault, assault or sexual harassment, the purpose of the slap was to express dominance and embarrass the woman in front of colleagues. He called it an attack on her dignity and self-respect.
The appeal court rejected the notion that a sociable workplace atmosphere is a mitigating circumstance in a case of workplace sexual misconduct.
“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,” Justice Kathryn Feldman wrote. The court then cited its own statement from a 1998 case in which it upheld the firing of a General Motors supervisor of security guards who made more than a dozen demeaning comments to several female summer students.
“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.”
The court did, however, order that Mr. Render receive eight weeks’ termination pay.
David Cowling, a lawyer who represented the elevator company, said it is pleased the court upheld the principle that a sexual assault in the workplace gives an employer just cause to terminate an offending employee.
“Hopefully, this aspect of the decision gives protection and reassurance to women in workplaces across the nation,” Mr. Cowling said.
Counsel for Mr. Render did not respond to requests for comment.
David Butt, a lawyer who represented the woman who was slapped, intervening at a lower court, said the ruling demonstrates that “casual and jokey are not licence to slide into the violation of sexual integrity.”
In August, the Alberta Court of Appeal upheld the dismissal of a man who, in lifting the hoodie of a female co-worker while flirting with her, accidentally lifted her T-shirt, exposing her bra. A lower-court judge had awarded the man damages of roughly 10 months wages, finding that his misconduct was at the low end of the spectrum. The appeal court said that sexual assault is by definition serious misconduct.
In November, the Ontario Court of Appeal upheld a firing of a male employee who made four demeaning sexual comments to a female colleague. The company had said the employee could keep his job if he took sensitivity training and apologized to the woman. He took the training, but refused to apologize.
“It was extraordinarily difficult a year and a half, two years ago, to even find a case where an employee was terminated for cause and a court upheld that decision just because of comments,” said Mr. Boshyk, who was involved in the November case.
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Sean Fine