MANDEL: Appeal court upholds firing of manager who slapped colleague’s bum

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She told him he was short. He slapped her on the butt.

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Mark Render insisted they were kidding around and it was no reason for ThyssenKrupp Elevator (Canada) Ltd. to fire him with cause.

In a recent ruling, Ontario’s highest court upheld Render’s 2014 dismissal but did agree the 30-year employee should have been given termination pay under the Employment Standards Act because his actions weren’t “pre-planned” and didn’t rise to the level of “wilful misconduct.”

Render had worked at his father’s company, York Elevators, since 1984 and after its purchase by ThyssenKrupp, he was made operations manager of the Mississauga branch. Linda Vieira was employed there as an accounts manager and was one of only three women in the small office of 13 employees.

Theirs was an office culture of regular banter and some inappropriate joking. But one afternoon in 2014, it went too far.

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On Feb. 20, the company had given a PowerPoint presentation of its new “zero tolerance” policy for harassment and discrimination in the workplace – and it came with the warning that discipline for violators could include dismissal.

Just eight days later, six employees were in the office when Vieira teased Render about his height. According to the ruling, he responded: “this is how short I am when I take my boots off,” then he went down on his knees in front of her with his face close to her breasts for two to three seconds.

Everyone laughed, including Vieira.

Render, who’d been waiting to talk to someone, testified that he then stood, swept his hand toward Vieira and said, “Get outta here,” and accidentally tapped her on the behind.

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The trial judge would later find it was no accident and it was no tap.

Immediately after the humiliating incident in front of her male colleagues, Vieira wrote emails to herself and her husband documenting what happened. “I couldn’t believe it and I told him that it was inappropriate. It was very awkward,” she wrote. “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.”

According to the decision, Render didn’t think he’d done anything wrong. He has admitted talking about it later with two of the guys who’d witnessed the slap, quipping “for 10 bucks you can shake my hand.”

Unsatisfied by what she viewed as his half-hearted apologies, Vieira reported Render to human resources. He followed by filing a counter complaint against her with HR for hitting him on her shoulder. A week after the incident, the 51-year-old Render was fired.

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I have filed a wrongful dismissal suit. On the eve of the 2019 trial, a media consultant hired by ThyssenKrupp Elevator put out a salacious press release promising “sex, drama, terminationand a legal question that could potentially affect every work environment in Canada.”

Superior Court Justice William Chalmers was not amused, but he did find the company was justified in throwing Render out on his keister: “I am satisfied that the act of slapping Ms. Vieira’s buttocks was an act that attacked her dignity and self-respect. This type of conduct is unacceptable in today’s workplace.”

The Ontario Court of Appeal agreed with Chalmers — but sided in Render’s favor on two other issues: he’s entitled to eight weeks of termination pay and no longer owes $73,696 in legal costs to his former employer because of the company’s “egregious” conduct during the trial by hiring a media consultant.

In its decision, the appeal court also offered a final word of caution to others who still don’t get it: “This was a most unfortunate situation that arose out of an overly familiar and, as a result, inappropriate workplace atmosphere that was allowed. to get out of hand,” wrote Justice Kathryn Feldman on behalf of the panel.

“Although some may perceive it to be benign and all in good fun, those on the receiving end of personal ‘jokes’ do not view it that way. And when things go too far, as they did in this case, the legal consequences can be severe.”

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