In a widely anticipated decision, the Ontario Court of Appeal upheld the termination of a 30-year employee for a single incident of misconduct. In Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, the Appellant (the employee whose employment was terminated) argued that they should not have lost their job for striking their female co-worker’s buttocks.[i]
For employers, this decision is a good reminder about the importance of establishing and following workplace policies with clear procedures for responding to complaints of workplace misconduct and harassment. It also illustrates the differences between the common law requirements for termination with cause and the statutory standard of 'wilful misconduct' under the Employment Standards Act (the ESA) in Ontario.
In the Safe Sport context, this decision has critical lessons for sport organizations responding to allegations of maltreatment.
There is no such thing as locker-room talk. Misconduct is misconduct.
In 1998, the Ontario Court of Appeal rejected the notion that employees, particularly female employees in “rough environment with abuse and sexual innuendo flowing freely in all directions” had to be ‘strong enough’ to handle this environment.
The Court stated that:
It is not a question of the strength or mettle of female employees, or their willingness to do battle. No female should be called upon to defend her dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented.
Moving forward after almost twenty-five years, both the Superior Court of Justice and the Ontario Court of Appeal reiterated this message. A ‘joking culture’ or overly familiar and potentially inappropriate workplace atmosphere does not excuse or minimize misconduct.
The trial judge rejected the employee’s position that the prevailing office culture was a mitigating factor which minimized the seriousness of their action and the corresponding severity of any discipline. The lower court stated that:
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.
Importantly, the trial court did not distinguish the slap as sexual harassment, sexual assault or simply a common assault, finding that doing so was unnecessary as the purpose of the misconduct was the same: “to assert dominance over [the Complainant] and to demean and embarrass her in front of her colleagues.”
The Court of Appeal endorsed this statement, holding that consideration must be given to those on the receiving end of personal “jokes”. In a line that can and should be integrated into all organizational policies, in principle if not verbatim, the Court of Appeal stated that:
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.
A common response to allegations of misconduct is that the actions or comments were not meant to be taken seriously, or that they were meant as a joke. This decision is clear judicial support rejecting the notion that inappropriate behaviour and any corresponding consequences may be dismissed or diminished as being ‘locker talk’ or ‘just a joke.’
In our view, doing so places the onus on the recipient of the joke or behaviour and does not create a safe space for participants. No one should have to defend their dignity or personal space in any environment.
As sport organizations look to effectively develop Safe Sport policies, it is essential that organizations echo the findings of the court; there is simply no place for demeaning or disrespectful conduct.
The Render decisions have numerous important considerations for sport organizations, including: