A recent Ontario Court of Appeal (“ONCA”) decision shows that while it may be hard to say “sorry”, an employee’s refusal to acknowledge and remedy serious offences with an apology is enough to support a just cause dismissal.
In Hucsko v AO Smith Enterprises Limited [Hucsko], the ONCA overturned the trial judge’s decision that the dismissal was unjustified, holding that the employee’s refusal to apologize had in fact resulted in an irreparable breakdown in the employment relationship. Just cause was clear, regardless of the employee’s 20 years of service.
After the employer investigated allegations against the employee, Mr. Hucsko, the employer found that Mr. Hucsko had engaged in sexual harassment against another employee. While Mr. Hucsko agreed to sensitivity training, he would not apologize to his colleague. The employer subsequently dismissed him for cause.
The trial judge held that while the employer had not clearly concluded sexual harassment occurred or that such conduct amounted to just cause, these issues were moot because the employer had ultimately dismissed the employee solely for not apologizing. The employee was awarded 20 months of pay in lieu of notice as wrongful dismissal damages.
The ONCA held the trial judge erred in solely focusing on the lack of apology. The ONCA held that the employer had, in fact, found that the conduct in question amounted to sexual harassment, and such conduct contravened both the law and the employer’s own policy.
The ONCA also clarified that the employee’s adamant refusal to apologize resulted in an irreparable breakdown in the employment relationship, as it “indicated a complete failure to acknowledge the nature and seriousness of his conduct”. Simply put, he did not believe he engaged in harassment.
The non-apology should not have been considered in a vacuum, and the seriousness of the misconduct was a critical component in assessing the proportionality of the employer’s response. The employee also received recent training on the employer’s harassment policy, and his senior position created a further expectation of trust.
In these circumstances, the ONCA held that the only conclusion the employer could reach was that there had been a complete breakdown in the employment relationship, as there was no sign the employee would not repeat the same misconduct in the future. The ONCA held the employee’s just cause dismissal was justified.
While case law demonstrates misconduct must be sufficiently serious to amount to cause, where allegations of misconduct are substantiated through a proper investigation, an employee’s adamant refusal to accept the subsequent discipline will additionally support just cause.
Conversely, an employee’s refusal to apologize for misconduct that is not serious will not amount to cause. The nature of the conduct remains critical in assessing whether there has been a breakdown in the employment relationship. Employers must be careful not to simply dismiss employees who will not apologize for their actions, and should ensure that any misconduct does, in fact, reach the high threshold of just cause.
Context also remains crucial. Although the employee in Hucsko was a long-service employee, he was also in a senior position and had recently completed harassment training. Importantly, the employer had a proper workplace harassment policy in place.
Under the Occupational Health and Safety Act (“OHSA”), employers have an obligation to ensure their harassment policies address how complaints or incidents of harassment will be investigated, and that they follow their progressive discipline policies in implementing any corrective action based on the results of the investigation. To avoid opening themselves up to liability—which the trial decision demonstrated can be expensive—employers should ensure that their workplace harassment policies comply with their obligations under the OHSA, and update their policies as necessary.
Hucsko also demonstrates our changing legal landscape regarding the weight of sexual harassment at the workplace. Sexual harassment for which an employee will not apologize, even when the harassment is limited to inappropriate comments, will be sufficient to irreparably damage the employment relationship, particularly where the employee has been trained about workplace harassment.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.