Although stories of workplace sexual harassment were pervasive as we closed the last decade, it was uncommon to see any of these cases make it all the way to trial. Early (and confidential) settlements with the accused are the norm, and trials are rare.
That is but one of the reasons that the trial decision in Render v. ThyssenKrupp Elevator (Canada) Limited is so exceptional. In October 2018, our former colleague wrote about a ground-breaking interim decision giving the complainant intervenor status at the potential trial. We assumed that this decision would have minimal real-world impact because the employer and employee would reach a settlement before trial. However, the case defied the odds by making it to a trial and has resulted in a public judgment by Chalmers J. of the Ontario Superior Court.
The decision is an important one for Canadian HR professionals to read. It is one of only a few judicial decisions analyzing the investigation of and sanctions against an alleged harasser in the Post-#TimesUp era.
As summarized in our earlier blog, the defendant employer terminated the employment of its operations manager, Mr. Render, for just cause. In doing so, the employer relied on Mr. Render’s actions in a single incident on February 28, 2014, involving his female co-worker, Linda Vieira. After a workplace investigation, the employer found that Mr. Render “slapped [Ms. Vieira’s] buttocks and also ‘placed his face in the area of [her] breasts and pretended to nuzzle into them’.”
Mr. Render made a wrongful dismissal claim against the employer, but after a trial, the court held that there was cause for termination and dismissed his claim.
What are the most interesting takeaways from the trial decision? I have summarized three of them below.
1. Remorse matters
The court found that Mr. Render’s lack of initial apology to Ms. Vieira “revealed a lack of appreciation of the seriousness of his act.” The court acknowledged that he apologized later but noted that he “also asked if she was serious” about her complaint and accused her of past similar conduct in punching him in the shoulder. This conduct, the court held, indicated Mr. Render’s failure to (a) take responsibility and (b) acknowledge the difference between touching a shoulder and a private body part.
Mr. Render’s lack of contrition and understanding of the seriousness of his actions puts into question whether the employment relationship could be maintained. [The employer] was rightly concerned that Mr. Render did not understand that his conduct was inappropriate and constituted sexual harassment. The seriousness of the conduct combined with [Mr. Render’s] denial is an aggravating factor.
It is clear from the wording of the decision that if Mr. Render had shown either (a) remorse for or (b) an understanding of the nature and seriousness of his actions, there may not have been just cause for termination.
2. Once is enough
The threshold for termination for just cause is high. A single incident of misconduct will rarely result in a termination for just cause especially with a long-term employee. However, the gravity of the misconduct will affect that analysis.
In this case, the court recognized that Mr. Render had been employed with the company for thirty years, with no disciplinary or performance issues, and that just cause terminations are rare in such circumstances. In addition to Mr. Render’s lack of remorse (which continued up to and throughout the trial), the court analyzed the seriousness of Mr. Render’s actions and agreed that there was proportionality between his conduct and the penalty:
The conduct was clearly of a serious nature. 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.
Although Mr. Render was a long-standing employee with a previously good employment record, I am satisfied that his conduct, both in slapping Ms. Vieira on the buttocks and his lack of understanding and remorse following the incident, is not reconcilable with sustaining his employment.
Relying on other case law, the court cited the following key principles about sexual harassment and termination for just cause:
Sexual harassment involving a non-consensual physical component is at the most serious end of the spectrum. Since such conduct is a criminal act and an employer is not obliged to warn employees not to commit criminal acts, one transgression can warrant summary dismissal.
An employer is duty bound to protect employees from offensive conduct and to shield itself from civil liability as the result of actions brought by employees victimized by sexual harassment.
The key takeaway for employers is that once can be enough if that “once” involves an offence serious enough to undermine the employment relationship.
3. Even when you’re right, you can be wrong…and it can cost you
In addition to the findings of wrongdoing by Mr. Render, Chalmers J. also expressed “serious concerns” with respect to the employer’s actions leading up to and during the trial. Specifically, the judge commented on the following “unacceptable” conduct by the employer:
- The employer “promoted Ms. Vieira’s breach of the witness exclusion order.” (Ms. Vieira had sent text messages to other witnesses before they gave evidence, which was a breach of the court’s order prohibiting such communications between witnesses. Ms. Vieira had also given a media interview between her examination-in-chief and her cross-examination.)
- The employer’s media consultant sent the following “sensationalist” statement to forty media contacts just before the trial started: “[t]his is important and I hope you’ll share it with interested parties. …. its [sic] got sex, drama, termination, and a legal question that could potentially affect every work environment in Canada.”
- The judge stated that the employer “chose to launch a public relations campaign on the eve of trial [which] may have been intended to put additional pressure on [Mr. Render] or was a misguided attempt to try to influence the court. The information contained in the statement to the media was inflammatory and included allegations not proven at trial.”
Although there have been no direct consequences arising from these findings about the employer’s conduct yet, the court implied that there could be future consequences. At the end of a trial judgment, judges usually ask the parties to negotiate a resolution regarding costs but, if they are unable to do so, they must make cost submissions so that the court may assess costs. Ontario has a default “loser pays” regime with respect to litigation costs, but Chalmers J. said that “[t]he manner in which the [employer] conducted itself during the trial will be a factor in determining its entitlement to costs and, if entitled, the amount.”
The Judge’s statement about the employer’s “public relations campaign” being a “factor” in determining costs is telling, as is the ominous qualification – i.e. “if any [costs]”. Courts do not often admonish the winner in litigation but will do so if the winner’s conduct was improper. Courts can also change the default of the “loser pays” by awarding no costs to the winner or costs from the winner to the loser.
The lesson here is that although an employer may be right regarding its position in the litigation, it must take the high road. Specifically, the employer should not attempt to litigate the dispute in the media and certainly should not disobey (or encourage others to disobey) court orders. Employers that take such actions may face adverse costs awards or other consequences.
There are other takeaways from this decision, so it is a must-read for Canadian HR professionals, especially as they attempt to adapt their investigation and termination practices to match the obligations of the modern workplace.
By Jennifer Heath
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