The case Render v. ThyssenKrupp Elevator (Canada) Limited concerns an employee dismissed in 2014 for having made a sweeping gesture with his arm, touching the female employee’s buttocks.

The trial court upheld the termination for cause, not awarding common law termination payments considering the  inappropriate workplace dynamic. On 20 April 2022, the Court of Appeal for Ontario upheld the termination for cause, but said the appellant was entitled to statutory termination pay and severance pay in accordance with the Employment Standards Act (ESA), as his actions did not rise to the level of “wilful misconduct”.

The Court, quoting from an earlier caselaw, Plester v. Polyone Canada Inc., explained what is required to meet the statutory standard for misconduct, clarifying that a “wilful misconduct” happens when the employee does something deliberately, knowing he is doing something wrong, while the "just cause" is a careless, thoughtless, or inadvertent conduct.

According to the Court, in this specific case employee’s actions were not preplanned, but in the heat of the moment in reaction to a slight. 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.

It is important for employers to considers that this decision requires to prove an individual’s mindset and their subjective prior intention to commit a wrongful act, increasing the burden of proof on the employer.

Moreover, the Court stressed that this type of workplace atmosphere “can no longer be tolerated”, so that employers have take reasonable steps to ensure a safe and respectful workplace.

The topic is increasingly the focus of attention of legislators and political and social parties, which have recently adopted measures in various countries (e.g. in South Africa, Denmark, Ireland and Australia) aimed at curbing and suppressing harassment in the workplace.