In Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, the Ontario Court of Appeal (ONCA) overturned the lower Court’s decision that found an employee had been wrongfully dismissed in relation to sexual harassment allegations and was awarded 20 months’ notice. In its reversal, the ONCA held that the employee had failed to fulfill remedial steps required by his employer; that he did in fact sexually harass his coworker; and that his for-cause termination was justified.
A senior, 20-year employee made several comments to his younger, female coworker on several occasions, including the following:
- The employee asked the complainant if she danced on tables at a work dinner;
- When the complainant shared she had planted new plants in her garden, the employee responded, “oh it’s all good any reason for you to bend over and go down on your knees”;
- When the complainant mentioned that her name was at the top of a list, the employee replied, “of course you are on top, you are getting pumped from under the skirt till you can’t stand anymore”, and simultaneously, made thrusting gestures with his hips; and
- The employee told the complainant to sit on a male colleague’s lap and ask him nicely to complete some action items.
The complainant advised HR, alleging she had experienced sexual harassment by the employee and that he continued to make unwelcome comments, despite the fact that she and other colleagues, including their supervisor, informed him these were inappropriate. A workplace investigation was conducted, and substantiated the complainant’s allegations of sexual harassment, finding that the senior employee’s comments were inappropriate. The employee (respondent) was provided a “corrective action memo” as a final warning, which formed a permanent part of his personnel file. This memo was remedial in nature and required the employee to, amongst other things, participate in sensitivity training and provide the complainant with a direct apology.
The employee disagreed with the investigation’s conclusions, and asserted that his behaviours and comments towards the complainant were not inappropriate. While he agreed to comply with the training requirement, he refused to provide her with an apology. As a result, the employer terminated the employee for cause, effective immediately and on the basis his conduct was inconsistent with the employer’s respectful workplace and anti-harassment policies. Notably, the employee’s refusal to comply with the employer’s decision on corrective action constituted serious, willful insubordination that it could not condone.
At the Superior Court of Justice, the trial judge found that neither the employee’s comments/conduct, or his refusal to apologize, justified for-cause termination. The Court held that the termination resulted not from any underlying conduct, but from the refusal to apologize or participate in corrective action. The trial judge ultimately held that the employer should have made additional efforts to negotiate the content of the apology with the employee and that, interestingly, he was dismissed in part due to his consultation with a lawyer. The senior employee was awarded 20 months’ notice of termination.
Reversing the trial judge’s decision, the ONCA found that the employer had cause to terminate the employee. It stated the trial judge erred by not giving enough weight to the employee’s underlying misconduct, which lead to the initial disciplinary process, and that the refusal to apologize “could not be viewed in a vacuum.” In the totality of circumstances – that the misconduct encapsulated both sexually harassing comments, as well as the refusal to apologize – the employer had no duty to negotiate the terms of discipline with the employee. In the Court’s eyes, the employee’s options were to either comply with the discipline and apologize, or risk termination.
Key Takeaways for Employers
This decision provides a clear finding for employers looking for guidance on terminations related to sexual harassment allegations in the workplace and the role, if any, of remedial requirements up to the point of termination. A properly conducted workplace investigation may offer good opportunities for employers required to address sexual harassment allegations and to determinate appropriate disciplinary steps including for-cause termination. It is important to acknowledge in this decision that the employer’s initial disciplinary measure – requiring an apology and sensitivity training – was found to be measured and proportionate. In this way, the decision indicates that such corrective action, short of dismissal, may be an appropriate response to workplace sexual harassment. What is appropriate will turn on the facts and will require a case-by-case, contextual analysis.
If you have questions, are interested in learning more about conducting workplace investigations, or how to properly assert or respond to allegations of workplace sexual harassment or assault, please contact SpringLaw for guidance.