Termination of employment for cause can seem like an unbelievably high bar for an employer to meet. Fortunately, the Ontario Court of Appeal has released two decisions in the last year that have upheld terminations for cause in circumstances involving sexual harassment and assault.
Hucsko v. A.O. Smith Enterprises Limited1 involved a 62-year-old male Senior Product Designer with 20 years of service. A female Project Manager made complaints of sexual harassment by Hucsko, specifically alleging he made four comments on four separate occasions:
- Asking the Project Manager if she had danced on the tables at a recent outing;
- Telling her, “now you need to go and sit on Simon’s lap and ask him nicely to do…”;
- When she referred to gardening, saying, “oh it’s all good any reason for you to bend over and go down on your knees”; and
- When referring to her name being at the top of the list, saying, “of course you are on top, you are getting pumped from under the skirt till you can’t stand anymore” while making a thrusting hip gesture.
The employer investigated the complaint, found the comments to have been made and found them to be inappropriate. Remarkably, the employer held off on initially terminating the employee, opting instead to send him to sensitivity training and having him apologize. Under protest, the employee agreed to training but refused to apologize, insisting his comments were not sexual in nature (really?!). In light of this, the employer terminated his employment for cause.
At trial, the court found it “unclear” whether the comments were sexual harassment and looked at the grounds for Hucsko’s termination for cause through a limited lens of refusing to provide an apology (rather than also taking the investigation findings into account) and found that a termination for cause was a disproportionate response. On appeal, the Court of Appeal found that the termination was appropriate, pointing to the fact that the employer had a Harassment Policy, it followed the investigation steps outlined in the Policy, Hucsko had recently been trained on the Policy, he was in a senior position with a degree of trust and the sexually harassing nature of the comments. All of these factors weighed against his length of employment. With the findings and the refusal of the employee to agree to an apology, there was a complete breakdown in the employment relationship.
In assessing the comments themselves, the Court of Appeal found that they were based on gender, were demeaning, unwelcome and created a poisoned atmosphere for the Project Manager.
Next up is Render v. ThyssenKrupp Elevator (Canada) Limited,2 a decision released in April of 2022. Unlike in Hucsko, Render deals with a single incident of sexual harassment, albeit involving a level of assault as well. Render was a supervisor with a 30-year tenure and no previous discipline. In a small group of employees, a female colleague of Render’s made a joke about his height. In response, he crouched down with his face 12 inches from her breasts, confirming he was short and staying in that position for 2-3 seconds. As he got up from his crouching position, he made a sweeping gesture with his hand and slapped her buttocks. She immediately told him his actions were inappropriate, and he alleged he meant to slap her hip and apologized, saying it was a joke with no sexual undertone. He was later observed mimicking the incident to other workers. She reported the incident to her manager and then formally to HR. In response, Render filed his own complaints saying that she had previously punched him in the arm. The investigation concluded he had committed the act and he was terminated for cause in response.
The trial judge upheld the termination for cause, and on appeal the Ontario Court of Appeal also upheld the termination, pointing to Render’s lack of remorse and failure to understand the significance of his actions, and concluding that the employment relationship could no longer be maintained. The court also considered that Render was a supervisor responsible for ensuring a safe work environment.
The court had to address the evidence that there was a “joking office culture” and determined that this was not a mitigating factor finding that, although an employee may engage in office banter, it does not mean they consent to being physically demeaned and disrespected.
Importantly, the court noted that the employer had concluded anything less than termination for cause would send a message to staff that they condoned the harassment and Justice Feldman of the Ontario Court of Appeal emphasized the importance that “an atmosphere of mutual respect will naturally generate the boundaries of behaviour that should not be crossed.”
Render is important in confirming that even a spotless 30-year employment record and a loose, joking workplace culture will not excuse even a single incident of sexual harassment and assault, particularly where the harasser does not acknowledge their behaviour or demonstrate their remorse.
What should employers take away from these important Court of Appeal cases?
- Have harassment policies in place that contain complaint and investigation processes;
- Follow those policies and train on those policies;
- Ensure you are keeping a firm grasp on your workplace culture so that the expectations outlined in your policies are reflected in your workplace on a daily basis; and,
- Consider the aggravating and mitigating factors in determining whether conduct warrants termination for cause.
Does your organization need assistance with drafting internal polices, training on your polices, an independent workplace investigation or advice on terminating an employee? Contact someone from Siskinds’ Labour & Employment Group today.