A manager at an elevator company in Ontario who slapped a female co-worker on her buttocks was fired for cause.
While the termination was warranted, the Court of Appeal said the man was entitled to termination pay because the conduct was not “preplanned” and didn’t rise to the level of wilful misconduct.
The manager began working at his father’s elevator company in 1984, and was its president when it was sold in 2002 to ThyssenKrupp Elevator. Under the new ownership, he was made operations manager of its office in Mississauga, Ont.
He held that position from 2005 until he was fired in 2014. As operations manager, he had four people reporting directly to him and 40 technicians and mechanics who were indirect reports.
The woman he assaulted was an accounts manager at the Mississauga office. She reported to the office manager, but the Ontario Court of Appeal noted it was a small office (13 employees) and the accused was in charge when that manager was absent.
Joking and bantering
There was a “very social atmosphere” in that office, the court said. The included a lot of regular joking and bantering. The manager described it as a “friendly and joking environment that he fostered to reduce stress.”
That environment included inappropriate jokes. The manager and the victim would engage in jokes and banter, including her calling him “short and not as good-looking as his brother.” On one occasion, she jokingly punched him in the arm.
As a holiday gift one year, she gave him a joke gift of an apron with a muscular man in underwear on it.
In May 2013, she asked him by email if he would like her to bring anything to him at his hotel. His response? “That’s a loaded question.”
On another occasion, she was asked to bring a clean shirt to the job site for him. When she arrived, she saw him with his shirt off and parked away from him. He emailed her and said “I heard you were afraid to see me topless.” Her response? “Not afraid, just inappropriate.”
On Feb. 20, 2014, the company presented its new anti-harassment and anti-discrimination policy. The slapping incident occurred just eight days later, on Feb. 28. It took place in one of the employee’s offices in front of six employees.
At one point, the manager made a comment to the victim about a stain on her blouse – asking if she was lactating. She responded later by making fun of his height, though the exact manner was disputed. His response to that was to crouch down while about 12 inches from her and said “this is how short I am when I take my boots off.” He then went down on his knees and crouched in front of her with his face close to her breasts for two or three seconds.
Everyone, including the victim, was laughing at that behaviour, the court said.
As he was getting up from his knees, he made a sweeping gesture with his right hand, during which he intended to tap her on the hip, and said “get outta here.” He testified that he either lost balance or she turned, with the result that he touched her on the buttocks.
When that happened, he said “good game” – a reference to sports locker room behaviour, and something the men in the office did on occasion as a joke when they tapped each other on the buttocks.
The woman’s response
The victim immediately expressed her displeasure, and the atmosphere in the room changed. She gasped, and said that what he did was not okay. She couldn’t believe he had touched her.
She had previously punched him in the arm, so he was confused about why she was upset, he said. She said it was different because “you hit me on a private sexual part of my body.”
The woman then sent an email to her husband detailing what had happened, and reported it to her boss. This is the text of the email:
We were joking around that he is short and I was taller than him. He was bending down pretending to be shorter and was coming up to my breasts, getting close … I was backing up from him, but he kept on invading my personal space. We were laughing about it. But he took it a step too far and actually spanked me on my butt. I couldn’t believe it and I told him that it was inappropriate. It was very awkward. He said that I’ve punched him in the shoulder before as if it’s an excuse. I said, no, it’s not the same thing as that was my private part. Present to witness this was Joe F., Leo D., Larry S., and Mario M.
I was thinking about this and I felt upset. I don’t want the other men in the office to think it is OK to do that to me so I decided to talk to my Manager about it. I went into Gary Platt’s office and told him what happened. I advised him that [the appellant] crossed a line and that it shouldn’t have happened … not appropriate. He asked me what I wanted him to do about it and I said that it was OK for him to talk to [the appellant] about it. And that [the appellant] would need to apologize to me.
The accused went back to his office. He was distraught, and two men who witnessed it came to see him to discuss what happened. That discussion also turned inappropriate, with the manager stating to the two men that “for 10 bucks, you can shake my hand.” That was a reference to the benefit of touching the hand that touched the woman’s rear.
About 10 minutes later, he made eye contact with the victim from the hall while she was in her office. He made a gesture like he was slapping his hip, and came in to see her. She told him he should not have touched her, he responded that it was a joke. He denied it was sexual and said he did not want to sleep with her. He apologized, but she felt it wasn’t sincere.
The manager, upset by what happened, left the office early at 3:45 p.m. He ran into two other employees on the way out, and stopped to have a cigarette with them. He demonstrated what had happened by crouching and making a swatting motion. Unfortunately, the victim saw this interaction out the window and perceived she was being mocked by him.
She told her boss about that interaction, and he sent an email to all the people who had been in the room, and those in the parking lot, saying what occurred could not happen again and it should be put to rest.
Complaint to HR
The following week, on March 3, the woman decided to report the incident to HR. She also described what happened to an executive who oversaw the Mississauga branch. HR began an investigation, and the manager was told the incident was sexual harassment and he may be suspended or terminated.
The manager, becoming concerned for his job, filed a counter complaint with HR about the time she punched him in the arm and that she and others had made anti-Semitic comments to him.
After concluding its investigation, the company decided to terminate the manager for cause. It was based solely on the incident of him touching her on the buttocks. He was given no severance, termination or vacation pay.
Severance pay and termination pay
What makes this case particularly interesting from an employment law angle is how the Court of Appeal looked at the manager’s entitlements under the Employment Standards Act.
Under the ESA in Ontario, employees who have been on the job for eight years or more are entitled to eight weeks’ termination pay, unless they are disentitled to such pay under the statute. It also provides for severance pay that varies based on length of service to a maximum of 26 weeks for companies with payrolls of more than $2.5 million.
The regulations state that certain employees are disentitled to termination and severance pay.
For termination and severance pay, it excludes “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.”
The Court of Appeal said the manager is entitled to those statutory benefits “unless that entitlement is precluded” by the act.
In the court’s view, his conduct did not rise to the level of wilful misconduct required under the regulation.
“While the trial judge found that the touching was not accidental, he made no finding that the conduct was preplanned,” the Court of Appeal said.
“Indeed, his findings with respect to the circumstances of the touching are consistent with the fact that the appellant’s conduct was done 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 awarded termination pay of eight weeks, but did not award the 26 weeks’ severance pay because there was no evidence presented that the company’s payroll was more than $2.5 million.
For more information, see Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310 (CanLII)