Sexual Misconduct Should Always Be Cause for Dismissal

Sexual misconduct in the workplace is never okay. Except, of course, when it is.

Sounds preposterous, no?

We have known for years that sexual misconduct in the workplace is not okay. We’ve attended trainings, perhaps as lawyers even written those same trainings, and are familiar with the ongoing campaign over the last decade or so to educate the broader public on the dangers of workplace sexual harassment. These were driven, in no small part, by the Government of Ontario’s groundbreaking changes to the Occupational Health and Safety Act to introduce duties for employers and workers to address sexual harassment in the workplace.

So why have we not been able to come to a unified conclusion that such conduct is completely and totally unacceptable? Why do we have a bifurcated standard between the types of workplaces and their governing law/regulations – where sexual misconduct will always be grounds for a for-cause dismissal in some workplaces, but not in others? 

A stark divide has arisen over the past two years between our privately-regulated workplaces, and the post-secondary colleges and universities that train so many of those skilled workers. The Government of Ontario has laudably and clearly established in legislation that sexual misconduct is never okay in the latter, and will result in an automatic dismissal for cause with no monies owing to the offender.

The former? Well, that may be a matter for debate. 

Strengthening the Legislation

In December 2022, Bill 26, also known as the Strengthening Post-Secondary Institutions and Students Act, 2022, received royal assent. While the name may be lofty, the Bill itself took a hard line when it comes to sexual misconduct. 

It codified the law stating that “if an employee of an institution (in this case a college, university, or training program) commits an act of sexual misconduct toward a student of an institution, the institution may discharge or discipline the employee for that act, and,

(a)  the discharge or disciplinary measure is deemed to be for just cause for all  purposes;

(b)  the employee is not entitled to notice of termination or termination pay or any other compensation or restitution as a result of the discharge or disciplinary measure…”

There were further requirements as well, namely that such institutions are no longer allowed to enter into any such agreements that prohibit employees from disclosing such past misconduct, and that any clauses already contained within existing agreements are automatically void.

The change was likely precipitated by several newsmaking incidents where it was revealed that post-secondary employees terminated for sexual harassment were able to quickly find re-employment at other unknowing institutions. Their past misconduct was, of course, protected by a non-disclosure agreement as part of their termination settlements. 

Now that a hard line is drawn, it would make sense that the same high standards apply to privately-regulated workplaces as well. The Court of Appeal, however, appears to have other ideas.

Where Render Gets It Wrong

The decision in Render v. ThyssenKrupp, 2022 ONCA 310, was noteworthy when it was first released by the Court of Appeal only a few months prior to the legislative change mentioned above. However, the way that the Court assessed the appellant’s conduct was significantly different, and respectfully, incorrect.

To recap, Render was the operations manager at an elevator business in Mississauga which operated out of a small office of 13 people – 10 men, and 3 women. There was frequent joking banter in the office culture, which may have been deemed inappropriate at times, but it had never raised significant flags in the past. The office did have an Anti-Harassment and Anti-Discrimination policy which indicated a ‘zero tolerance,’ and noted that violators may be subjected to termination of their employment. 

That policy was put to the test during an incident in February, 2014 when, during an exchange with colleagues, the Plaintiff grabbed a female colleague’s buttocks. While he had denied that the grabbing was intended in a sexual nature, he later admitted that he was offering colleagues “10 bucks to shake his hand” – the hand that sexually assaulted a coworker. 

The Plaintiff was terminated for cause roughly one week later, after an internal investigation, and given no severance or termination pay. Yet while the decision was upheld at trial, the Court of Appeal disagreed. It ruled that even though the Plaintiff’s termination for cause was justified at common law, his conduct did not rise to the level that would disentitle him from his minimum entitlements under the Employment Standards Act and its regulations.

Under the regulations of the Act, namely O. Reg. 288/01 section 2(1), which outlines the various circumstances where employees are not entitled to any legally mandated termination or severance pay, the list includes “an employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.” Courts have since used this benchmark as a higher standard of cause versus what had previously been interpreted as ‘just cause’ for termination at common law. 

The Court reasoned that the trial judge noted that the conduct was not ‘preplanned,’ and was done in the heat of the moment. It added, “although his conduct warranted dismissal for cause, it was not the type of conduct in the circumstances in which it occurred that was intended by the legislature to deprive an employee of his statutory benefits.” In other words, Render’s conduct was not seen as meeting that higher standard.

The Plaintiff was ultimately awarded his minimum 8 weeks’ termination pay and would have been awarded statutory severance pay had the Plaintiff properly pled and led evidence regarding the same. 

The Double-Edged Sword

Although Render should not be interpreted to suggest that sexual misconduct will never be cause for termination in workplaces outside of post-secondary institutions, Render puts employers in a difficult position when assessing their risk as to whether to terminate an employee for cause after sexual misconduct has occurred. 

With respect to the Court, it is perplexing to say the least that they are interpreting legislative intent regarding sexual assault in one way, when the legislature has stated very clearly that such conduct is absolutely never okay in a different workplace. The answer is not simply because positions of authority rank differently in the world of academia. The Plaintiff in Render was a senior-level employee, so that simply does not add up.

This sort of conduct is never okay, period.  It is high time that the legislature step in and amend the Employment Standards Act, 2000 and O. Reg. 288/01 to specifically spell out “sexual misconduct” as a prescribed reason why an individual would not be entitled to termination pay or severance pay.  Put simply, when it comes to sexual misconduct there should not be two different standards of cause terminations applicable to different kinds of workplace.

If you find yourself dealing with an incident of sexual harassment in your workplace, and you’re not sure what to do next, I can help. For employers, the next steps are crucial in determining what discipline or penalties should take place, and how a workplace can prevent it from happening again. Contact my office to schedule a consultation.