Case Alert: Recent Case Clarifies Degree of Misconduct Required to Deny Termination Entitlements Under the ESA

In a decision released on April 20, 2022, the Ontario Court of Appeal reviewed a case involving the dismissal of a long standing employee, following a single incident of misconduct. In the case of Render v. ThyssenKrupp Elevator (Canada) Limited, the Ontario Court of Appeal provided valuable analysis into the high threshold for misconduct that is required to disentitle an employee from minimum termination and severance pay entitlements  under the Employment Standards Act (ESA).

The Facts

The appellant was a 30 year employee in a managerial role. The employee was dismissed following a single incident in the workplace where he slapped a female co-worker on the buttocks. The Court upheld the trial judges’ determination that the single incident was enough to establish “just cause” such that he was not entitled to “common law” notice of termination, but that the misconduct was not “wilful” and therefore the employee was still entitled to termination pay and severance pay under the ESA.

The Insights

The Court held that when looking at the threshold for meeting wilful misconduct, the employee must do something deliberately, knowing they are doing something wrong. Careless, thoughtless, heedless, or inadvertent conduct, no matter how serious, does not meet the standard. It must be intentional or deliberate, and the employer must show that the employee purposefully engaged in behaviour he or she knew was serious misconduct. Just cause requires an objective test, albeit one that takes into account a contextual analysis and therefore has subjective elements. Wilful misconduct involves an assessment of subjective intent, almost akin to special intent in criminal law. The Court found that although the actions of the appellant warranted dismissal for cause, it was not the type of conduct in which it should deprive the employee of his statutory benefits, as the conduct was done in the heat of the moment and not preplanned.

Why is This Case Important?

This case provides a prime example of the high threshold required to establish wilful misconduct by an employer when attempting to deny ESA. Although an arbitrator or judge may find that there was just cause to dismiss an employee, it does not necessarily mean that it rises to the level of wilful misconduct, it would require additional subjective elements in order to be established.

PooranLaw will continue to monitor legal developments related to the ESA and just cause dismissal.  In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.