No Apology, No Job – A Serious Approach to Sexual Harassment at Work
The Ontario Court of Appeal recently upheld the termination of an employee for refusing to accept responsibility and to apologize for conduct that, following an internal investigation, was found to constitute sexual harassment. In so doing, the Court has reminded us all that sexual harassment at work can indeed justify summary dismissal, and refusing to accept responsibility for that misconduct can result in a breakdown of the employment relationship.
The Basic Facts:
Mr. Hucsko had worked with the employer for twenty years before his termination on July 25, 2017. He was 62 years old at the time of the trial, whereas the complainant, who had only worked with the employer for approximately three years, was about 52 years of age. The complainant had accused Mr. Hucsko of various inappropriate comments, including making references to exotic dancers and suggesting the complainant sit in another employee’s lap.
Following an investigation, it was determined that Mr. Hucsko had indeed made inappropriate comments. The investigation also found that Mr. Hucsko had previously been warned by a supervisor against making such comments but nevertheless continued making the comments. The investigation memo noted:
“This is a very serious matter.”
As part of the investigative memo, Mr. Hucsko was warned that further comments would result in his termination. Two requirements were made of him:
- ) He was required to participate in sensitivity training;
- ) He was required to provide a direct apology to the complainant.
Mr. Hucsko agreed to participate in sensitivity training. He did not agree, however, to apologize. Because he refused to apologize, his employment was terminated for cause. The employer argued there was an “irreparable breakdown in the employment relationship.”
Was it fair for the employer to terminate Mr. Hucsko for not apologizing?
The Trial Judge: No Just Cause
The trial judge believed Mr. Hucsko’s comments did not warrant summary dismissal. It was not clear to the trial judge that the comments amounted to sexual harassment. As for the apology, the trial judge was critical of the employer for not negotiating the content of the apology prior to terminating Mr. Hucsko. Ultimately, the trial judge believed there was no just cause to terminate Mr. Hucsko. There was no irreparable breakdown in the employment relationship. The trial judge therefore awarded Mr. Hucsko with 20 months’ compensation in lieu of notice.
On Appeal: Termination Was Warranted
On appeal, the Ontario Court of Appeal disagreed with how the trial judge characterized the comments made by Mr. Hucsko. Indeed, the comments were inappropriate and properly constituted sexual harassment. They reached this conclusion for four reasons:
- ) Each comment was based on gender and possessed a sexual connotation;
- ) The comments were demeaning and undermined the complainant’s dignity. They implied provocative behaviour by the complainant, or that she welcomed Mr. Hucsko’s sexual suggestions;
- ) The comments were unwelcome and Mr. Hucsko knew that; and
- ) The comments created a poisoned atmosphere for the complainant.
This finding is essential to correctly interpret Mr. Hucsko’s refusal to apologize. The apology, according to the Court of Appeal, was only a single aspect of Mr. Hucsko’s misconduct. The refusal to apologize did not occur in a vacuum. The apology was an opportunity for Mr. Hucsko to “redeem himself and to save his job.” The Court of Appeal believed this was a fair and proportionate response by the employer.
In this context, the Court of Appeal held that Mr. Hucsko’s refusal to apologize did indeed amount to a complete breakdown in the employment relationship. Mr. Hucsko refused to accept the discipline imposed on him as a consequence of his misconduct. For that reason, the employer could have no confidence that Mr. Hucsko would not continue with the same conduct moving forward – particularly as he refused to even accept that what he had done amounted to sexual harassment, despite the investigation’s conclusion that it had.
In the end, the employer’s decision to terminate Mr. Hucsko based on his refusal to apologize was therefore justified and appropriate.