Ontario's Courts Condemn Workplace Sexual Harassment
In recent years, we have seen a rise in awareness of issues of sexual harassment. Mirroring the condemnation of sexual harassment seen in public initiatives, such as the "Me Too" movement, recent legal decisions reflect a stringent approach to issues of workplace sexual harassment.
The starting point is that Ontario laws affords protection to employees to be free from sexual harassment in the workplace. On the flipside, employers have an obligation to maintain a safe work environment for their employees, including taking appropriate steps to prevent and deal with occurrences of workplace sexual harassment.
In our previous blog post, How to Handle Workplace Harassment Complaints, we elaborate on employers' duties to investigate allegations of workplace harassment, including workplace sexual harassment. In this blog post, we deal with the question of what can an employer do when it concludes an employee has engaged in workplace sexual harassment against another employee?
The Ontario Court of Appeal has recently released two decisions which deal with this very issue and provide some welcome guidance to employers and employees alike.
Hucsko v. A.O. Smith Enterprises Limited, 2021 ONCA 728
In this case, the employee was a Senior Production Designer who had been employed with the company for over 20 years. A female co-worker filed a harassment complaint against him, alleging he made four inappropriate comments of a sexual nature. For example, she alleged he had asked her if she "danced on the tables" following a work dinner and when discussing a work project, said she should go and sit on a co-worker's lap and "ask him nicely to do it".
The employer's human resources department investigated, concluded the employee made inappropriate comments, and required him to participate in sensitivity training as well as provide a direct apology to the female co-worker. The employee agreed to the training but refused to issue an apology. The employer then terminated him for cause, stating his refusal to apologize was "serious and wilful insubordination."
The employee brought a wrongful dismissal lawsuit, claiming there was no cause for termination.
Trial Decision:
At first instance, the trial judge agreed with the employee. It was held that the termination for cause was not justified, in part because it was found: (1) the employee was not terminated for sexual harassment but rather for the refusal to apologize, and (2) that the employer had a situation where "two employees were in a difficult working relationship" and the employer was entitled to decide who to continue to employ, but not to terminate for cause. The employee was awarded 20 months of pay in lieu of reasonable notice.
The employer appealed.
Court of Appeal Decision:
The Court of Appeal sided with the employer. It overturned the lower court's decision and held that termination for cause was justified.
In reaching this conclusion, the Court of Appeal found the trial judge had erred by: (1) failing to find the inappropriate, demeaning comments made by the employee justified the action by the employer; and (2) failing to find the employee's refusal to apologize resulted in an irreparable breakdown in the employment relationship.
The Court of Appeal emphasized that the refusal to apologize did not happen in a vacuum. The termination for cause was proportional in light of the employee's contrition, lack of understanding of the seriousness of his conduct, and refusal to comply with a reasonable and essential requirement of an apology to a female co-worker.
Render v. ThyssenKrup Elevator (Canada) Limited, 2022 ONCA 310
In this case, the employee was also a long-tenured employee in a managerial role, having been with the employer for over 30 years. The workplace generally had a very informal atmosphere, with bantering and jokes. The employee and a female co-worker had both teased one another on various occasions, including her joking about his height and jokingly punching him on the arm. During one group meeting, the female co-worker was teasing him about his height, following which, he tapped her on the bottom and said, "good game". The female co-worker immediately gasped and said that was not okay.
The employee initially appeared not to take the incident seriously, asking why the female co-worker was upset and making jokes to his male co-workers that "for 10 bucks you can shake my hand". The employee did eventually apologize to the female co-worker, about 10 minutes after the incident.
The female co-worker filed a complaint with the employer's human resources department, who investigated. Following the investigation, the employer made the decision to terminate the employee's employment for cause.
The employee brought a wrongful dismissal lawsuit, claiming there was no cause for termination.
Trial Decision:
At first instance, the trial judge sided with the employer, finding the termination for cause was justified. The Court held that the act of slapping a female co-worker on the buttocks in front of other coworkers was very unacceptable. It was also emphasized that the employee was in a position of authority as a supervisor, had received training on the employer's zero-tolerance Anti-Harassment and Anti-Discrimination policy just 8 days prior, and had not seemed to understand that what he did amounted to sexual harassment.
The employee appealed.
Court of Appeal Decision:
The Court of Appeal upheld the trial decision. It agreed the termination for cause was proportionate. In reaching this conclusion, the Court noted the importance of maintaining a workplace of mutual respect, which will naturally generate boundaries of behaviour that should not be crossed.
Takeaways:
Read together, these cases strongly message that the consequences for sexual harassment in the workplace can be severe. There is judicial support that workplaces should be premised on mutual respect, and that a low or zero tolerance approach to workplace sexual harassment may be justified. It is important to keep in mind, however, that whether a termination for cause is appropriate continues to be circumstance specific. It is relevant that in both these cases the employer took steps to investigate and substantiate the allegations prior to terminating, and there were aggravating factors, including the employees' senior roles, lack of remorse, and relevant workplace policies.
Moving forward, employers are encouraged to proactively make sure they have an up-to-date workplace harassment policy and provide training on it. Employees should familiarize themselves with their employer's policies and practices, and the resources available to them should a workplace harassment incident occur.
Lee Workplace Law would be happy to answer any questions you may have about protecting against or responding to issues of harassment in the workplace.
