Despite allegations of sexual harassment, employee fired after declining to say sorry to colleague
Can you insist that an employee who engaged in sexual harassment apologize to the victim — and then fire them if they refuse?
While a trial court judge said no, the Ontario Court of Appeal recently disagreed and upheld the dismissal.
The employee in question was in his 60s and had 20 years of service. He was accused of making several inappropriate comments to a female colleague, including:
- “Now you need to go and sit on Simon's lap and ask him nicely to do…” (mentioned some action items)
- asking if she had danced on tables at a dinner
- in response to her comments about gardening: “Oh, it's all good, any reason for you to bend over and go down on your knees”
- in response to her commenting on her being at the top of the list of email addresses: “Of course you are on top, you are getting pumped from under the skirt till you can't stand anymore” (making multiple thrusting gestures with his hips while he made this comment)
The employee offered explanations for all of these alleged comments that were less than compelling. As a result, he received a warning that included:
“The company has conducted an investigation and has concluded that you made inappropriate comments … Your conduct is not acceptable and will not be tolerated by the company. The required corrective action is as follows:
1. Final Warning – This corrective action memo will-become a permanent part of your personnel file. This is a final warning. Should there be another instance of inappropriate comments of this nature toward the same employee or another employee, it will result in your immediate discharge.
2. Additional Training – You will be required to participate in sensitivity training to familiarize you with the impact your comments have on others. The company will arrange this training and advise you when it is scheduled.
3. Apology – You will be required to provide a direct apology to the female employee to whom you directed your inappropriate comments. Your supervisor and human resources manager will also be present.”
The employee advised that he disagreed with the findings and retained counsel, who wrote to the company and stated that “Given the circumstances where the facts are in dispute and the complaint is disconcerting to Mr. Hucsko, who prides himself on his professionalism, it is our position that an apology is not appropriate”.
The company subsequently dismissed him for cause, asserting that:
I. You made inappropriate and vexatious comments to a co-worker, despite being advised by both the co-worker and your supervisor that your comments were unwelcome and inappropriate. The company conducted an investigation into the matter and found your conduct to be inconsistent with the company’s policies related to anti-harassment and respect in the workplace.
II. Throughout the investigation and following its conclusion, you have shown no remorse for your misconduct and have demonstrated an inability to recognize the seriousness of the matter. Therefore, the company does not believe that you are willing and able to correct your behaviour going-forward.
III. Your refusal to accept and comply with the company’s decision on corrective action constitutes serious, willful insubordination that cannot be condoned by the company.”
As the termination letter indicates, the dismissal was due to “serious, willful insubordination”. The trial judge found that this related to the refusal to apologize, and was critical of the company for not bothering to attempt to clarify or negotiate the terms of the apology requirement before moving to termination.
Ultimately, the judge found that there had not been an irreparable breakdown in the employment relationship, so termination for cause was not warranted.
Requirements for dismissal for cause
It is important to remember that there are only two types of dismissal in Canada: with cause or without cause. The vast majority of dismissals are without cause, in which case the employee will be entitled to notice or pay in lieu. However, where there has been an irreparable breakdown in the employment relationship, then the employer can dismiss the employee for cause, in which case they are not entitled to any notice, termination pay, or other compensation.
Obviously, that is a harsh result and the threshold for establishing just cause is accordingly high. That said, I have written a book on just cause for dismissal, You’re Fired! Just Cause for Dismissal in Canada, and update it twice every year. As a result, I review all of the just cause cases and can say that there are many circumstances in which judges or arbitrators will agree that summary dismissal (dismissal for cause) was warranted.
It is important to understand that when assessing whether just cause for dismissal exists, one cannot simply look at the misconduct in question. Rather, a court or arbitrator will assess all of the relevant factors using what is usually referred to as a contextual approach.
First, the employer must prove that there was misconduct. Second, they must show that in light of all relevant factors, the employment relationship has been irreparably damaged. Relevant factors include things such as the length of employment, prior disciplinary history, any mitigating circumstances, and the employee's response when confronted.
The latter factor can be critical: if the employee is apologetic and provides reasonable assurances that the conduct in question will not reoccur, then a court is likely to give them a second chance. Conversely, if they are dishonest and make it clear that they cannot be trusted in the future, it is more likely that they will agree that the employer should not be expected to continue to employ them.
No double jeopardy
One important point to remember is that you cannot discipline an employee twice for the same transgression. In this case, the corrective action arising out of the harassment was not dismissal; it was a final warning and the requirement for an apology. However, the employee was subsequently dismissed for his refusal to comply with a reasonable direction: to apologize.
In this case, the refusal to apologize gave the employer good reason to question whether it could trust the employee going forward. As the Court of Appeal found:
“ In addition, through his lawyer’s letter, the respondent refused to “issue an apology to [the complainant] admitting any wrongdoing” on the basis that the facts were in dispute and the complaint was disconcerting to him. The letter expressly took the position that an apology was not appropriate, and did not seek any negotiation of the form or terms of an apology. In his testimony, the respondent acknowledged that “If you’re guilty of sexual harassment, or any kind of harassment, the complainant or the victim deserves an apology. That’s a no-brainer.” However, he stood firm in his position that “I was not going to apologize because I did not harass that woman”.
 In those circumstances, the only conclusion the appellant could reach was that there was a complete breakdown in the employment relationship as (i) he was either unwilling or unable to understand the purpose and effect of the Workplace Harassment Policy and to take its requirements seriously and (ii) he was unwilling to accept the discipline imposed on him as a consequence of his misconduct of sexually harassing a co-worker. As a result, the appellant could have no confidence that the respondent would not continue with the same type of misconduct in the future.
 Faced with the respondent’s lack of contrition, lack of understanding of the seriousness of his conduct, and his refusal to comply with the reasonable and essential requirement of an apology to the complainant and target of his comments, the appellant’s decision to terminate the respondent’s employment was a proportional and wholly warranted response.”
We are often asked whether an employer can insist upon an apology. While it is not always advisable to do so, this case confirms that if an employee refuses, they may be risking their continued employment.
That said, the fact that the trial judge came to the opposite conclusion is another reminder of how unpredictable court proceedings can be, and why it is wise to choose your battles strategically.