Sexual harassment is a specific form of workplace discrimination involving comments, jokes, or conduct relating to sex, sexual orientation, or gender that are unwelcome or ought to be known are unwelcome. Employers are legally required to take action when they become aware of a claim of sexual harassment in the workplace. Following an investigation, it might be appropriate for the employer to provide sensitivity training or even terminate the employment of the employee that engaged in the behaviour.
In the event of termination, it is possible that the dismissed employee may bring a claim for wrongful dismissal, arguing that the employer failed to demonstrate just cause.
In the recent case of Hucsko v A.O. Smith Enterprises Limited, the court was called upon to decide whether an employee could be terminated for just cause following an investigation into a complaint made by a co-worker regarding four inappropriate comments that constituted sexual harassment.
Workplace Investigation into Inappropriate Comments
In 2017, the plaintiff, an employee of 20 years, was investigated by his employer for making inappropriate comments. The complainant, another employee, made a formal complaint to the human resources manager alleging sexual harassment. The manager and director of finance and administration conducted an investigation and concluded that the plaintiff made inappropriate comments. The employer provided a final warning to the plaintiff and required him to participate in sensitivity training and provide an apology to the complainant.
The plaintiff did not agree with the conclusions and sought legal advice. His lawyer wrote to the employer stating that the plaintiff would undertake the training but was not prepared to issue an apology admitting to any wrongdoing.
The employer subsequently suspended the plaintiff and then terminated his employment for cause effective immediately due to “an irreparable breakdown in the employment relationship” based on inappropriate comments inconsistent with company policies, a lack of remorse indicating an inability to correct the behaviour going forward and refusal to comply with the required corrective action constituting willful insubordination.
Challenge Brought by the Dismissed Employee
The plaintiff succeeded in a wrongful dismissal claim before Justice Taylor of the Superior Court of Justice of Ontario and was awarded damages in lieu of 20 months’ notice.
His Honour found that it was unclear whether the employer had concluded that the plaintiff’s conduct amounted to sexual harassment, but that he was dismissed for insubordination. The plaintiff’s conduct did not justify a conclusion that there had been an irreparable breakdown in the employment relationship.
Justice Taylor criticized the employer for failing to respond to the lawyer’s letter and negotiate the wording of an apology acceptable to both parties. While the employer was entitled to terminate on the basis of an incompatible working relationship with a colleague, it was not entitled to create a situation in which it relied on just cause to terminate the plaintiff’s employment.
The employer appealed to the Court of Appeal for Ontario.
Did the Trial Judge Err in Finding that the Termination for Cause was Not Justified?
Justice of Appeal Feldman considered three arguments put forward by the employer.
Did the Trial Judge Make an Error of Fact by Finding that the Employer Did Not Conclude that the Plaintiff’s Comments Amounted to Sexual Harassment?
Her Honour held that the trial judge erred in finding that it was unclear whether the employer found that the comments constituted sexual harassment. The investigation’s finding that the comments were inappropriate was in the context of a complaint of sexual harassment – the investigation concluded that the allegation of sexual harassment due to the making of inappropriate comments was substantiated.
Did the Trial Judge Err in Law by Failing to Apply the Correct Test for Determining Whether the Employer had Just Cause to Dismiss the Plaintiff?
Her Honour cited authority setting out the test as:
the core question for determination is whether an employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. …
Application of the standard consists of:
1. determining the nature and extent of the misconduct;
2. considering the surrounding circumstances; and
3. deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).
Justice of Appeal Feldman held that the trial judge erred in applying this test by failing to properly identify and characterize the conduct for which the plaintiff was terminated. The plaintiff’s conduct consisted of both making inappropriate comments and then refusing to apologize, not just the latter. His Honour did not adequately address the second step either, failing to consider the employer’s harassment policy and recent training undertaken by the plaintiff.
Did the Trial Judge Err by Failing to Find that the Employer had Just Cause to Terminate the Plaintiff’s Employment?
Justice of Appeal Feldman proceeded to apply the three-step test. Looking at the nature and extent of the misconduct, her Honour concluded “there is no doubt that [the comments] constituted sexual harassment”. Moving to consider the surrounding circumstances of both the employee and the employer, her Honour placed significant weight on the fact the plaintiff had just received training on the employer’s harassment policy and was a senior employee, and as such, would have been trusted to abide by the policy in his relations with co-workers.
Finally, her Honour decided that the misconduct was sufficiently serious that it resulted in a breakdown of the employment relationship and that dismissal was a proportional response by the employer. The giving of a final warning and opportunity to redeem himself by taking training and apologizing was a fair and proportionate response. Failure to understand his conduct and accept the discipline imposed led to a complete breakdown in the employment relationship. Termination of the plaintiff was justified.
Contact Haynes Law Firm in Toronto for Advice on Sexual Harassment
Haynes Law Firm helps employers and employees throughout Ontario achieve effective solutions to legal issues and conflict management in employment law and civil litigation. Our legal team represents employees facing sexual harassment and helps wrongfully dismissed employees obtain the compensation to which they are entitled. We also help employers ensure they meet all workplace safety and harassment compliance obligations. To discuss how the employment law team at Haynes Law Firm can assist you, please contact us online or call us at 416.593.2731.