Employee terminated for just cause after refusing to apologize for lewd comments
By John Hyde
In a recent decision, the Ontario Court of Appeal found that an employer had just cause to terminate an employee who refused to apologize after allegations of sexual harassment made against him were substantiated.
In Hucsko v A.O. Smith Enterprises Ltd., the respondent was alleged to have made four sexually suggestive comments to a female co-worker (“the Complainant”), leading to a complaint of sexual harassment.
As a result, the employer conducted an internal workplace investigation into the matter and concluded that the respondent had in fact made the inappropriate remarks.
Following the investigation, the employer wrote to the respondent and communicated three forms of corrective action he was required to accept and/or perform.
- The employer advised the respondent that he would be discharged immediately if he were to make similar inappropriate comments to his co-workers in the future.
- The employer required the respondent to participate in sensitivity training, as a means of demonstrating the impact of his inappropriate comments.
- The employer required that the respondent apologize to the Complainant.
The respondent reluctantly agreed to participate in the sensitivity training, but refused to apologize to the complainant or admit to any wrongdoing.
In response, the employer eventually terminated his employment for just cause. In doing so, the employer made reference to his lack of remorse and inability to comprehend the seriousness of the matter.
When do employers have just cause to terminate?
In determining whether an employer is justified in terminating an employee for cause, the critical question is whether the employment relationship can continue after the employee’s misconduct. Usually, dismissal of an employee for cause will only be warranted in cases where the misconduct is so serious, that it “strikes at the heart of the employment relationship.”
The assessment of whether an employer has just cause to terminate an employee is based upon the specific facts of the case, as well as the context of the misconduct. In deciding whether an employer had cause to terminate an employee, the courts will:
- Determine the nature and extent of the employee’s misconduct: It is important to note that consideration will be given to employee misconduct discovered both before and after termination.
- Consider the surrounding circumstances: For employees, courts will assess factors such as age, employment history, seniority, role, and responsibilities. For employers, the courts will review the type of business engaged in, any relevant policies and practices, as well as the discharged employee’s position within the company.
- Decide whether dismissal was an appropriate response: The courts will consider whether the misconduct is serious enough to result in the breakdown of the employment relationship.
Court of Appeal decision
In first assessing the nature and extent of the respondent’s misconduct, the court found that the comments made to the complainant indeed amounted to sexual harassment. Each comment was based on gender and had an explicit sexual connotation.
As well, the court determined that the comments were demeaning and unwelcome, and that they created a poisoned work environment for the complainant.
In evaluating the circumstances of the employees in question, the court found that the respondent had recently participated in workplace harassment training.
Furthermore, the respondent was a senior employee who had been with the company for 20 years, meaning that the employer trusted him to comply with their workplace harassment policy.
Finally, in light of the respondent’s explicit refusal to apologize to the complainant, the court determined that the employer had no choice but to conclude that there had been a complete breakdown in the employment relationship.
The court reasoned that the respondent’s attitude demonstrated an unwillingness or inability to understand the purpose of the employer’s workplace harassment policy and its function in keeping workers safe.
Furthermore, the court found that the respondent clearly did not accept the discipline imposed upon him by his employer. As a consequence, the employer had reason to believe that the respondent would engage in inappropriate conduct again in the future.
Thus, the respondent’s lack of remorse and understanding, as well as his refusal to apologize to the complainant, led the court to conclude that the employer had cause to terminate him.
The bottom line
For employers, the decision to terminate an employee is not one which should be taken lightly. This is true, regardless of whether the employee is being discharged with or without cause.
Accordingly, employers should obtain expert legal advice and guidance prior to making any decisions regarding employee terminations.
John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.
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