Manager gets severance a decade after slapping coworker’s buttocks

As our firm has warned on multiple occasions, employers must proceed with severe caution when deciding whether to terminate an employee for cause, without severance pay.

Incident occurred following sarcastic remark

A striking example of this lesson arises from the case of the former manager working for ThyssenKrupp Elevator in Mississauga, Ontario. This manager began working for the company in 1984.

In 2014, he slapped a female colleague on the buttocks in front of several other male employees, after she made a sarcastic remark about the manager’s short height. Although evidence indicated that the company fostered a particularly social and rowdy work environment, this must have been embarrassing for the female colleague.

Fired For Cause

After ThyssenKrupp became aware of the incident via the female employee’s complaint, the company fired the manager for cause and did not give him severance pay. The manager then sued the company for wrongful dismissal.

Appeal results in minimum severance

While the vast majority of wrongful dismissal claims are resolved well before they end up in a courtroom, this particular matter did go to trial.

The judge found that the company had legitimate reason to dismiss the manager for cause, and ordered him to pay $73,000 in costs for commencing his unsubstantiated lawsuit.

The manager appealed the case. After 8 years of litigation, he was eventually awarded his minimum statutory entitlement (minimum severance pay amounts guaranteed by the provincial government) to 8 weeks’ pay. The appeals judge also declared that the female worker engaged in trial misconduct for participating in media interviews during the trial.

Lessons learned

Typically, employees are owed severance pay upon termination. For an employer to withhold severance pay, they must be able to justify that they had cause to terminate the employee by proving that the employee engaged in misconduct that disentitles the employee from severance pay.

The case of the manager for ThyssenKrupp Elevator demonstrates that although an employee may engage in misconduct that warrants termination for “just cause”, that does not necessarily mean that the employee is not entitled to their statutory – or minimum – severance pay. In order for an employer to legally withhold a terminated employee’s statutory termination pay, which is the employee’s bare minimum entitlement required upon termination, the company must prove that the employee engaged in wilful misconduct, which is a higher threshold than “just cause”.

The appeals judge stated that for wilful misconduct to be established, a judge needs to be satisfied that the misconduct was intentional or deliberate, and that the employee did it on purpose, full-well knowing it was serious misconduct.

When firing a worker without providing proper fair severance, employers must be ready to prove that the employee’s misconduct was not only severe, but intentional as well.