Case In Point
Appellate Court Upholds Cause Termination for Sexual Harassment
Date: October 19, 2021
The Ontario Court of Appeal has found that an employer had cause to terminate the employment of a senior employee who had sexually harassed a co-worker and refused to take the remedial steps required by the employer. It reversed a lower court decision which found that the employee had been wrongfully dismissed and awarded 20 months’ notice.
In Hucsko v. A.O. Smith Enterprises Ltd., the employee had been accused of making numerous inappropriate comments to a co-worker. A workplace investigation confirmed that the comments had been made and that they constituted sexual harassment. As a result, the employer gave the employee a final warning, and advised that any further inappropriate comments would result in discharge. The employer also directed the employee to take sensitivity training and to apologize to the complainant.
The employee consulted a lawyer, who wrote to the employer on the employee’s behalf. The employee agreed to take sensitivity training, but refused to apologize. The employee insisted that he had not done anything wrong.
The employer then dismissed the employee for cause on the basis of his sexually harassing comments, his lack of remorse and his refusal to apologize. The employee sued for wrongful dismissal.
At Trial
The trial judge found that neither the comments themselves or the refusal to apologize justified summary termination of the employee’s employment. He stated that the termination did not result from the underlying misconduct, but rather because the employee refused to apologize. The trial judge further determined that the employer should have negotiated the content of an apology with the employee and that the employee was dismissed in part because he consulted with a lawyer. The employee was awarded 20 months’ reasonable notice of termination.
The Court of Appeal Weighs In
The Court of Appeal reversed the trial judge’s decision and found that the employer had cause to terminate the employment of the employee.
It stated that the trial judge erred by not giving adequate weight to the employee’s underlying misconduct which lead to the discipline in the first place. The refusal to apologize could not be viewed in a vacuum. The misconduct involved both the sexually harassing comments as well as the refusal to apologize. In these circumstances, the employer had no duty to negotiate with the employee over the terms of discipline. The employee’s options were to either comply with the discipline and apologize or risk termination.
By refusing to apologize, the employee failed to comply with the discipline imposed by the employer. He completely failed to understand the seriousness of his misconduct and showed that he was unwilling to accept the consequences of his actions. The employer was therefore right to be concerned that the employee would repeat the same type of misconduct in the future and was right to terminate for cause.
This decision is a helpful one for employers seeking to take strong and decisive steps to address sexual harassment in the workplace.
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