by Anne-Marie Langan
An employee recently sued their employer for wrongful dismissal after he was terminated from his employment for having slapped a female co-worker’s butt. The employer argued that it was justified in terminating his employment due to the gravity of the incident and the Superior Court agreed in the case of Render v. ThyssenKrupp Elevator (Canada) Limited, 2019 ONSC 7460 (CanLII).
The employee who brought the law suit had been working for the employer for 12 years when the butt slapping incident occurred and was described as a “valuable employee”. The employee admitted there had been a lot of joking and bantering in the office prior to the incident, some of which was of a sexual nature, but that the victim seemed comfortable with it and often engaged in the bantering herself. The victim admitted that she sometimes took part in the bantering but did so because she did not want to be ostracized.
There was contradictory evidence about what had happened from witnesses but the court found that, at the very least. the employee had crouched down to the victim’s breast level about 1 foot away from her and had slapped her buttocks as he got up. The employee had shown no remorse after the incident and had joked about the incident with his co-workers and taunted the victim by mimicking a butt slapping action as he walked by her office. He had also lodged a formal complaint against the victim for having punched him in the arm months prior to the butt slapping incident.
Based on all of the evidence the court concluded:
A slap on a female co-worker’s buttocks is not acceptable conduct in the modern workplace. The act involved non-consensual physical contact on a sexual part of Ms. Vieira’s body. Mr. Render was not her direct supervisor but was a senior person in the office, with whom Ms. Vieira had to work. Mr. Render ought to have been aware that this conduct was unacceptable, especially when the Anti-Harassment Policy had been presented to the employees eight days before the incident.
This was a surprising result because it is difficult for employers to meet the legal test for just cause termination as they have to provide evidence that the behaviour of the terminated employee was such that a viable employment relationship could no longer subsist. The court noted that had the employee successfully made out a case for wrongful dismissal he would have received $337,405.72 in damages!
One of the reasons the employer avoided liability was that they had provided mandatory training about their anti-harassment policy to all staff prior to the incident and the employees were warned that there would be zero tolerance of sexual harassment and that their employment could be terminated if they engaged in such behaviours. The Legal Clinic offers free virtual training for employees and employers about how to prevent and address sexual harassment in the workplace. There is a workshop for employees scheduled for August 26, 2020 at noon by Zoom. For more information about our free workshops contact The Legal Clinic at 613-264- 7153, or by email at firstname.lastname@example.org.