ThyssenKrupp is a famous elevator company. It had an office with 10 males and 3 females and it was a fun, joke filled place to work.
Mr. Render was a supervisor with the company. He had been there 30 years and had no discipline history. He seemed well liked.
Ms. Viera was one of the 3 females in the office- it appears that she was well liked and had a good relation with Mr. Render. Indeed she had slapped him on the arm on occasion and made jokes about him being short. She was fairly tall. He was an indirect supervisor to her.
There was a recently implemented anti harassment policy in the company.
On the sad (for all concerned) day in question, there were quite a few of the employees in the office, and all were busy with phone calls and work.
Ms Viera had a stain on her blouse. Mr. Render asked her if she was lactating. She got close to him and commented on how short he was. He got down on all four limbs to say “this is how short I am without boots.”
As Mr. Render got up from all four limbs, his hand touched her derriere. She took great offence. She eventually went to HR and he was fired for “just cause” and not given any E.S.A. monies or common law severance monies. He sued for wrongful dismissal. He claimed that he meant to touch her hip as he got up; i.e that he did not intend to touch her derriere.
The trial occurred in 2019. The trial judge found that the touch was intentional and found there was thus “Just Cause” for the employer to dismiss Mr. Render with no monetary payment, even given his long, unblemished career.
Mr. Render appealed to the Ontario Court of Appeal. Their decision came down recently in 2022.
They, quite rightly, refused to revisit the factual findings of the trial judge.
However, they made an interesting, and perhaps perceptive, ruling that what happened had occurred spontaneously and that although it was technically intentional conduct, it was not premeditated conduct.
They then turned their attention to the “misconduct disqualification” section of the Employment Standards Act and noted that its wording seemed to say that premeditated intent was needed. Since the act was not premeditated, they ordered that Mr. Render receive his 8 weeks of termination pay under that Act.
It was unfortunate that Mr. Render’s Statement of Claim had not set out E.S.A. termination pay, or the more lucrative E.S.A. severance pay. The appeal court held that since there was no evidence before the trial judge that the employer had a payroll of over 2.5 million dollars, they could not award Mr. Render severance pay (which would have been 30 weeks of pay).
The appeal court correctly pointed out that the joke filled, sexist, office environment was a recipe for legal disaster in the 21st century and pointed out how the end result between the parties to the litigation essentially was a “pox on both their houses” or a “draw”.
I also am concerned for the plaintiff’s lawyer who did not lead evidence at trial about the payroll of the defendant employer.
The long and the short of this case, is that a work slap on the derriere is a “bridge too far” and that occasionally litigation works out badly for all concerned.