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A crash course on course of conduct: When it comes to workplace harassment, a single incident may not be just a single incident

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In Ontario, harassment is defined in both the Human Rights Code and the Occupational Health and Safety Act as a course of vexatious comment or conduct that is known or ought to be known to be unwelcome. The term “course of conduct” gives the impression that harassment needs to be made up of multiple incidents. In fact, in some circumstances one serious incident can constitute harassment in the workplace.

What makes a single incident “serious”?

The Human Rights Tribunal has given us caselaw that explains what makes one single incident sufficiently serious to be considered workplace harassment. From the caselaw we know that there are some factors that weigh in favour a single incident being considered harassing:

  • If a single comment is particularly “egregious or virulent” (see Dunn v. Edgewater Manor Restaurant, where the respondent’s comment about “getting naked” was found not to be sufficiently egregious to constitute harassment)
  • If the single incident involves putting one’s hands on the body of another in a sexual way (see Murchie v. JB’s Mongolian Grill, in which the respondent flicking the complainant’s nipple was found to be workplace sexual harassment)
  • If an unwanted comment is explicitly sexual, demeaning and/or attacks the dignity of the complainant (see Romano v. 1577118 Ontario Inc., in which the respondent asking the complainant about her preferred sexual position was found to be harassing)
  • If a demeaning act is premeditated, rather than spontaneous (see Xu v. Quality Meat Packers Ltd., in which the respondent brought a photograph to work that was allegedly of the complainant’s genitals, and circulated the photograph to co-workers)

Additional guidance: The Render decision

The recent Superior Court of Justice decision Render v. ThyssenKrupp Elevator gives some additional helpful guidance on what constitutes a single serious incident of harassment, and in particular what part aggravating and mitigating factors play when reviewing single incidents of harassment.

The Render case involved the termination of an operations manager for cause, after a single incident of misconduct in February 2014. On that day, Mr. Render was having a conversation with a co-worker in which she made a joke about his height. Mr. Render crouched down in front of the co-worker, pretending to be shorter, and in doing so brought his face close to her breasts. When the co-worker backed away, Mr. Render kept advancing close to her. As he got up, Mr. Render hit his co-worker on the buttocks, and said, “Get out of here.” After the co-worker left another, male, co-worker asked Mr. Render what it had felt like to touch her buttocks, and Mr. Render replied by asking, “Who wants to touch the hand that slapped (her) ass?” The co-worker heard about the comment, was upset and reported the incident shortly thereafter. After an investigation, Mr. Render was terminated for cause.

Before the Superior Court, Mr. Render argued that termination for cause was a disproportion response in light of his conduct.

In considering how serious the single incident was – and particularly whether the incident was serious enough to warrant termination – the court reviewed various aggravating and mitigating factors.

Aggravating factors:

  • Invasion of personal space: The court noted that Mr. Render had put his face in close proximity to his co-worker’s breasts and that in doing so he had invaded her space.
  • Attack of dignity: The court noted that Mr. Render had slapped his co-worker on the buttocks, and in doing so had attacked her dignity and self-respect.
  • Position in the company: Mr. Render was a supervisor (although not the direct supervisor of the co-worker involved in the incident) and the court noted that as a supervisor he has a heightened duty to ensure a safe working environment.
  • The company’s Harassment Policy and training: The employer had a clear policy that outlined zero tolerance for harassment and discrimination. Staff – including Mr. Render – had been trained on the policy eight days prior to the incident.
  • Lack of remorse: The court noted that Mr. Render showed a lack of remorse and a refusal to take responsibility for his actions during the employer’s investigation. Specifically, he tried to make counter complaints about the female co-worker, alleging that she had previously punched him on the shoulder.

Mitigating factors:

  • Employment record: Render had worked for the company for 30 years, and had no previous disciplinary issues.
  • Office culture: The company had a “joking culture” in which the other employees – including the female co-worker – participated. Although culture was a mitigating factor that the court considered, it was found that it was not a mitigating factor in this case. Specifically, the court noted that the female co-worker participating in jokes did not mean that she consented to being touched and demeaned by Mr. Render.

Given the serious nature of the incident and the consideration of mitigating and aggravating factors, the court found that the employer established that dismissal for cause was appropriate in the circumstances.

Key takeaways:

  • Workplace harassment will usually manifest as a pattern of behaviour, but as either an employer or a workplace investigator, do not dismiss offhand the possibility that a single incident could amount to harassment
  • When deciding on whether a single incident rises to the level of harassment, consider all relevant factors including whether the incident was premeditated, how serious it was, and whether the respondent attacked the dignity of the complainant
  • When deciding what to do after the investigation (i.e. whether the respondent can return to the workplace) take into consideration the relevant mitigating and aggravating factors surrounding the incident, including whether the respondent shows remorse, their position in the company, and their employment record

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