A recent Ontario Court of Appeal decision raises the bar for employers seeking to withhold minimum entitlements under the Employment Standards Act from employees dismissed for cause.

The case arose when TK Elevator terminated Mark Render — a manager with more than 30 years’ service — for cause in 2014 after he briefly placed his face near a female colleague’s breasts before he slapped her bottom and said, “Good game.”

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The evidence at trial indicated male co-workers in the workplace would frequently slap each other on the bottom and say “Good game” as part of the joking and teasing that was a regular feature of the workplace. The complainant had often engaged in teasing her coworkers, including Render.

She testified the initial contact was in jest, but the atmosphere changed after Render touched her bottom. Render gave evidence that the contact was intended to be a joke and shortly thereafter, he apologized to the complainant.

An investigation concluded Render’s behaviour was contrary to TK Elevator’s harassment policies. The employer took the position that “the slap” was just cause for termination.

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Render sued for wrongful dismissal, but the trial judge ruled he was guilty of harassment and his dismissal was lawful, disentitling him to notice at common law. But the trial judge didn’t consider whether Render’s behaviour was wilful misconduct that deprived him of his ESA entitlements.

The court upheld the trial judge’s ruling that Render had been lawfully terminated. But the court also concluded his behaviour didn’t amount to wilful misconduct under the ESA because the contact with the complainant had occurred in the “heat of the moment” and wasn’t pre-planned.

“The court reiterated the well-known principle that proving wilful misconduct is more onerous than proving just cause for termination,” says George Avraam, a litigation partner at Baker McKenzie LLP’s Toronto office, who wasn’t involved in the case. “But it added a new element requiring employers to establish that the misconduct must be pre-planned and not just intentional.”

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Barry Fisher, a Toronto-based employment law mediator who wasn’t involved in the case, says, “historically, wilful meant ‘not accidental.’ Adding ‘pre-planned’ takes things to a whole new level and makes it extremely difficult for employers to establish wilful misconduct.”

By way of example, Fisher notes even gross incompetence or chronic tardiness wouldn’t amount to wilful misconduct. “It’s the difference between knowing the boss is calling you into her office to put you on performance review and coming there with a bat and being called in expecting a raise but being unexpectedly put on performance review, then picking up whatever happens to be handy and hitting the boss with it.”

According to Avraam, the ruling makes a real difference in practical terms. “Many people whose conduct is questionable don’t sue for wrongful dismissal and just try to get their statutory entitlements.”

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