Adamant refusal to apologize for sexual harassment justified termination from employment: court

This refusal resulted in the irreparable breakdown of the employment relationship

Adamant refusal to apologize for sexual harassment justified termination from employment: court

The Court of Appeal for Ontario has ruled that the adamant refusal of a senior employee to apologize for sexual harassment led to the breakdown of the employment relationship which justified his termination.

In Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728, the appellant terminated the employment of the respondent for just cause following an investigation into a complaint for sexual harassment. The investigation involved four incidents where the respondent made inappropriate comments which amounted to sexual harassment. After the investigation, the respondent was required to attend additional training and issue an apology to the complainant.

The respondent replied, stating that while he was willing to comply with the training requirement, he refused to issue an apology. The appellant suspended the respondent, and then later terminated him due to “an irreparable breakdown in the employment relationship.”

The trial judge ruled that the respondent’s termination was unjustified. He found that the appellant failed to consider the respondent’s 20 years of service, and that the mere refusal to issue an apology did not result in “irreparable breakdown in the employment relationship.”

On appeal, the Court addressed the “core question” of whether the respondent’s conduct gave rise to a breakdown in the employment relationship.

In ruling in favour of the appellant, the Court found that the trial judge incorrectly applied the test set out in Dowling v. Ontario (Workplace Safety and Insurance Board), 2004, 246 DLR (4th) 65. The test involves three steps: determining the nature and extent of the misconduct, considering the surrounding circumstances and deciding whether dismissal is warranted.

The trial judge erred in focussing solely on the refusal to apologize, since “the refusal to apologize is only part of the misconduct,” said the Court. Also, while the trial judge considered the respondent’s tenure, he did not consider other factors such as the appellant’s Workplace Harassment Policy, the senior position of the respondent and the degree of trust stemming from such a position.

“Sexual harassment is not confined to actions but includes comments with a sexual innuendo,” said the Court. The Court found that the comments made by the respondent bore unmistakable sexual connotation and created a poisoned atmosphere for the complainant in her workplace.

As a senior employee, he was trusted to abide by the Workplace Harassment Policy and treat all his co-workers, including the complainant, with dignity and respect, said the Court.

Finally, as to whether the conduct was sufficiently serious to justify termination, the Court found that the appellant did not initially terminate the respondent. He was offered an opportunity to redeem himself by attending additional training and apologizing to the complainant. His “adamant” refusal to apologize “indicated a complete failure to acknowledge the nature and seriousness of his conduct,” said the Court.

Applying the test, the Court ruled that the only conclusion the appellant had was that there was a complete breakdown in the employment relationship, and thus, the respondent’s termination was justified.

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