The Ontario Court of Appeal found an employer had just cause to terminate an employee for sexual harassment given his refusal to acknowledge his behaviour and take corrective action.
In Huckso v. A.O. Smith Enterprises Limited a 20 year employee (the “Respondent” in the investigation) made a number of suggestive remarks to a female colleague including the following:
- In response to his colleague saying she had a good time at recent management function, he asked whether she “danced on the tables”;
- In response to question about what needed to be done next on a project, the Respondent indicated “now you need to go and sit on Simon’s lap and ask him nicely to do…” (mentioned some action items);
- During a casual conversation about gardening and planting new plants, the Respondent indicated “oh it’s all good any reason for you to bend over and go down on your knees”;
- On another occasion, the Complainant stood by the Respondent’s desk as he typed an email to her. As the Respondent clicked the letter “S” in the address field it automatically dropped down a list of names and the Complainant’s name was on top of the list. She indicated “hey look I am on top of the list” to which the Respondent indicated “of course you are on top, you are getting pumped from under the skirt till you can’t stand anymore” and made multiple thrusting gestures with his hips while he made this comment;
The Complainant filed a harassment complaint which was investigated by the employer. At the conclusion of the investigation, the Respondent was informed his actions were inappropriate and violated his employer’s workplace policies.
The employer asked the Respondent to take sensitivity training and apologize to the Complainant for his behaviour. The Respondent took issue with the findings and refused to apologize. In response, he was suspended and then terminated for just cause as the employer concluded there was an irreparable breakdown in the employment relationship. The employer’s decision was upheld by the Ontario Court of Appeal.
Conclusion
- Employers must have a robust policy to address harassment and sexual harassment, including procedures on how to file a complaint and how the employer will respond;
- Employees, especially managers, must be trained on applicable workplace policies so they understand their obligations;
- Ensure your team is equipped to conduct a proper workplace investigation.
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