Ontario Court Of Appeal Weighs In On The Meaning Of "Wilful Misconduct"

• Published date: 06 May 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Trials & Appeals & Compensation
• Law Firm: Cassels
• Author: Ms Laurie Jessome

In April of 2022, the Court of Appeal released its decision in Render v. ThyssenKrupp Elevator (Canada) Limited 2022 ONCA 310. This decision provides employers with some guidance on how and when to distinguish between just cause for termination under the common law and wilful misconduct under the Employment Standards Act, 2000 (the ESA), a distinction that was critical to the decision of the Court of Appeal in Waksdale v. Swegon North America. (See our article on this decision here.)

The plaintiff in this case, Mr. Render, was a former employee of ThyssenKrupp Elevator (Canada) Limited (ThyssenKrupp) who had been terminated for just cause in 2014. At the time of his termination, Mr. Render had been employed by the company for over 30 years and held a managerial position. His job required him to directly manage four employees and indirectly manage up to 40 others. The incident that resulted in the termination of Mr. Render's employment was an interaction with a woman who reported to him, Linda Veira, which took place in the presence of several other male coworkers. Ms. Veira alleged that Mr. Render had placed his face near her breasts for a short period of time (two or three seconds) and had then slapped her on her bottom, after which he said, "Good game." The evidence at trial indicated that male coworkers in the workplace would frequently slap each other on the bottom and say, "Good game!" The evidence at trial also established that joking and teasing was a regular feature of the ThyssenKrupp workplace and that Ms. Veira had often engaged in teasing her coworkers, including Mr. Render.

Ms. Veira's evidence was that although the initial interaction was in jest, the atmosphere in the room changed once Mr. Render made contact with her bottom. She alleged that she immediately told Mr. Render she was not comfortable with the physical contact. Mr. Render responded by reminding her that she had punched him in the shoulder recently. Mr. Render said he apologized; Ms. Veira denied this.

The trial judge found that immediately after the incident, Mr. Render retreated to his office and discussed the interaction with two of the male coworkers who had been present. In that meeting, Mr. Render was asked how it felt to make contact with Ms. Veira's bottom. In response, he offered the other employees the opportunity to shake his hand "for 10 bucks." Shortly thereafter, Mr. Render encountered Ms. Veira in the hallway and he offered an apology, noting that the contact was intended to be a joke and confirming that he was not trying to sleep with her. Ms. Veira testified that she believed the apology was insincere. Mr. Render's manager gave evidence that Mr. Render had also advised him that the contact with Ms. Veira was intended to be a joke and that he would apologize.

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