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Just Cause Is Not Wilful Misconduct: Lessons from Render v. ThyssenKrupp Elevator (Canada) Limited
Render v. ThyssenKrupp Elevator (Canada) Limited (2022 ONCA 310) is a decision every Ontario employer managing a for-cause termination should understand. The Ontario Court of Appeal upheld the summary dismissal of a 30-year managerial employee for a single incident of workplace sexual harassment, a meaningful win for the employer on the central issue. But the same decision ordered the employer to pay the employee's statutory termination pay and stripped the employer of its entire trial costs award because of how it conducted the litigation. The case is a clear illustration that winning on just cause is only part of managing a termination well.
The gap between common law just cause and statutory wilful misconduct is the same distinction that drives the termination clause analysis in Waksdale v. Swegon North America Inc. (2020 ONCA 391). In Render, the Court of Appeal applied it to the termination itself: the employer proved cause, yet still owed the employee eight weeks of termination pay under the Employment Standards Act, 2000 because the misconduct, while serious, was not preplanned or deliberate in the sense the statute requires.
Considering a for-cause termination, or responding to a serious workplace harassment incident?
The just cause threshold is high, the statutory analysis is separate, and the decisions you make in the first days shape the litigation that follows. Get advice before the termination letter goes out, not after the claim arrives.
Call: 1-800-771-7882 Get Ahead of a Risky TerminationBackground: a single incident ends a 30-year career
Mark Render had worked at the elevator company since 1984, starting at his father's business and staying on after ThyssenKrupp acquired it in 2002. By 2014 he was operations manager of the Mississauga office, with four direct reports, dozens of technicians reporting indirectly, and responsibility for the office when the office manager was away. His record over three decades was free of any discipline or performance issues.
The Mississauga office had a highly social, joke-heavy culture that included inappropriate banter and physical horseplay among the male employees. On February 20, 2014, the company rolled out a new Anti-Harassment and Anti-Discrimination Policy, presented to staff including Mr. Render. The policy stated zero tolerance for harassment, identified unwelcome touching as sexual harassment, confirmed that a single incident could qualify, and warned of discipline up to and including termination.
Eight days later, during an exchange of jokes in a shared office, a female colleague teased Mr. Render about his height. He crouched in front of her with his face close to her chest, and as he rose, slapped her buttocks and said "good game". She was shocked and upset, documented the incident immediately, and reported it to her manager and then to HR. Shortly afterward, Mr. Render commented to two male colleagues that for ten dollars they could shake the hand involved. Following an HR investigation, the company terminated his employment for cause and paid him nothing: no termination pay, no severance, no vacation pay.
The trial judge upheld the dismissal. The Court of Appeal agreed on cause, but allowed the appeal on two other fronts that carry real financial and reputational weight for employers.
What the Court of Appeal found
Just cause upheld for a single incident
Applying the contextual analysis from McKinley v. BC Tel, the Court found no error in the trial judge's conclusion that summary dismissal was proportionate. The deciding factors were not just the slap itself but the full context: Mr. Render was a manager responsible for implementing workplace policies, the zero-tolerance policy had been presented to him eight days earlier, and his conduct afterward showed he did not appreciate the seriousness of what he had done. His 30 years of unblemished service was weighed and did not tip the balance.
ESA termination pay still owed despite just cause
Disentitlement to ESA minimums requires "wilful misconduct, disobedience or wilful neglect of duty that is not trivial", a standard the Court confirmed is higher than common law just cause. The conduct here was serious but spontaneous, a reaction in the heat of the moment rather than something preplanned or deliberate. The employee was therefore awarded eight weeks of statutory termination pay. Statutory severance was not awarded only because there was no evidence in the record that the employer's payroll met the $2.5 million threshold.
Litigation misconduct erased the employer's costs award
Before trial, the employer retained a media consultant who sent a sensationalist press release about the case to 40 media outlets, including allegations never proven at trial. The complainant also gave a press interview mid-testimony despite a witness exclusion order, conduct the trial judge found the employer facilitated. The trial judge had reduced the employer's costs by 50 percent. The Court of Appeal went further, set aside the $73,696.66 costs award entirely, and ordered no costs of the trial at all.
The context that supported just cause
Key lessons for Ontario employers
Just cause and wilful misconduct are two separate tests
Proving just cause at common law eliminates the obligation to provide reasonable notice. It does not automatically eliminate ESA termination and severance pay. The statutory standard requires intentional, deliberate wrongdoing, conduct the case law describes as being bad on purpose. Spontaneous, heat-of-the-moment misconduct can justify dismissal yet still leave statutory minimums payable. Budget for ESA minimums in most for-cause terminations unless the conduct was clearly deliberate.
Paying nothing at termination invites an appeal
ThyssenKrupp paid no termination pay, severance, or vacation pay. That decision gave the employee a live issue to take to the Court of Appeal even after losing at trial, and he won on it. Where the statutory analysis is uncertain, paying ESA minimums at termination removes that exposure for a known, capped cost while preserving the just cause position on common law notice.
Fresh, communicated policies strengthen the cause position
The zero-tolerance policy mattered because it was specific, recently presented, and clearly understood by the employee, who as a manager was responsible for enforcing it. A policy sitting unread in a handbook does not deliver this. Roll policies out in person, document attendance, and ensure supervisors know they are held to a higher standard under them.
You need not prove you considered alternatives, but it helps to show you did
The Court confirmed there is no freestanding legal duty to work through lesser disciplinary measures before dismissal, as long as dismissal is proportionate in the result. But the employer here had evidence that it did consider alternatives and rejected them for a principled reason: retaining the manager would signal to female employees that the conduct was condoned. That record helped discharge the employer's onus. Documenting that reasoning before terminating is the best practice.
Litigation conduct is part of the cost of the case
The employer won at trial and on the main issue on appeal, and still walked away with no costs recovery because of the press release and the facilitated breach of a witness exclusion order. Courts treat conduct that taints witness evidence or pressures the opposing party as an attack on trial fairness. Publicity strategy in employment litigation needs the same legal oversight as the pleadings.
Fix the culture before it produces the incident
The Court described the events as the product of an overly familiar workplace atmosphere that was allowed to get out of hand. The employer prevailed on cause, but only after years of litigation, an appeal, a statutory payment, and a forfeited costs award. A workplace built on mutual respect, with banter that stays within professional boundaries, is far cheaper than the strongest just cause defence.
Is your organization's next termination defensible on both the common law and ESA standards?
The analysis in Render shows how much turns on the facts: the employee's role, the policies in place, the conduct after the incident, and what the employer pays at termination. Get the structure right before the decision is made.
Plan a Defensible Termination Or call us: 1-800-771-7882Related resources
For how the just cause versus wilful misconduct distinction affects the enforceability of your employment contracts, see: Lessons from Waksdale v. Swegon North America Inc.
For how courts assess termination clause enforceability and common employer liability across corporate groups, see our summary of Rahman v. Cannon Design Architecture Inc. (2022 ONCA 451).
For support managing terminations and layoffs, see our employer termination and layoff services.
Call us at 1-800-771-7882 for a confidential consultation.
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