Sexual harassment and failure to accept employer’s disciplinary measures is cause for termination
October 26th, 2021
An employer has just cause to terminate an employee for inappropriate, sexually harassing comments and refusing to apologize, the Ontario Court of Appeal recently held. Employers should be particularly interested in this decision given the weight placed on the Workplace Harassment Policy.
In Hucsko v. A.O. Smith Enterprises Limited, John Hucsko, an employee with 20 years of service, was terminated by his employer arising from a complaint made by his female co-worker. The employer investigated four incidents and determined there was a pattern of comments made by Hucsko of a sexual nature directed at the complainant. Hucsko knew or ought to have known the comments were inappropriate. The comments fit the definition of sexual harassment in the employer’s Workplace Harassment Policy and under the Occupational Health and Safety Act.
The employer advised Hucsko of its investigation findings. The employer required Hucsko to take additional sensitivity training and apologize to the complainant. Hucsko disagreed with the findings. He subsequently told the employer he would take the training but was adamant that it was unnecessary and refused to apologize. The employer suspended Hucsko and soon after terminated him for cause.
The trial judge concluded there was no irreparable breakdown in the employment relationship. The comments were not categorized as sexual harassment and did not justify summary dismissal. It was unclear to the trial judge whether the employer had concluded Hucsko’s conduct was sexual harassment. The trial judge noted Hucsko’s dismissal was not because of a finding of sexual harassment but instead for serious and wilful insubordination, which presumably arose from his failure to apologize. Hucsko was awarded damages based on 20 months’ notice of termination.
Court of Appeal
Justice Feldman writing for the majority overturned the trial judge’s decision and held the employer had just cause at termination. The trial judge erred in finding that it was “unclear” whether the employer had concluded Hucsko’s comments constituted sexual harassment. Sexual harassment due to inappropriate comments was substantiated in the employer’s investigation. These findings were communicated by the employer to Hucsko and he understood it.
Further, the trial judge failed to correctly apply the three-part test set out in Dowling v. Ontario (Workplace Safety & Insurance Board) to determine whether termination for cause was justified, which includes:
- Determining the nature and extent of the misconduct;
- Considering the surrounding circumstances; and
- Deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response).
The trial judge erred in failing to determine whether the comments made by Hucsko constituted sexual harassment. The trial judge focused solely on Hucsko’s refusal to apologize. The severity of the misconduct which led to the discipline and ultimately the dismissal should have been considered.
There was no doubt that the comments constituted sexual harassment of the complainant, the Appellate Court held. The comments were based on gender with an unmistakable sexual connotation. The comments were demeaning, unwelcome, and poisoned the work environment for the complainant.
The trial judge also erred in failing to consider the Workplace Harassment Policy. Given Hucsko’s lengthy tenure, seniority, and recent training he received on the Policy, he was trusted by his employer to abide by it. The employer followed the complaints procedure in its Policy and was permitted to take corrective action in the face of a breach, including termination.
While the employer did not initially terminate Hucsko based on sexually harassing conduct, his response to the employer’s corrective actions resulted in a breakdown in the employment relationship. The employer’s decision to terminate was proportional and warranted given Hucsko’s lack of remorse, understanding of the seriousness of his conduct, and refusal to apologize.
This is an important decision confirming the required test to determine whether an employer’s termination for cause is justified. It is instructive to both employers and employees on what constitutes sexual harassment in the workplace. The decision highlights the importance of employers having strong workplace policies, following the complaints procedure, and imposing corrective action in accordance with those policies prior to termination.