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Howard Levitt: Apologising Can Be Hard. Refusing to Do So Can Cost You Your Job

posted 2 years ago

Being asked to apologise to your co-workers, particularly when you believe you have done nothing wrong, can be a difficult pill to swallow. For one employee who was asked to apologise as part of a disciplinary process, refusing to do so led to his termination. The case was recently addressed by the Ontario Court of Appeal.

In 2017, A.O. Smith Enterprises Limited terminated a 20-year employee for just cause following an investigation into a sexual harassment complaint made by a female coworker. According to the ruling, the employee, John Hucsko, was accused of making comments which included asking the complainant to sit on a male colleague’s lap in front of coworkers, and of making sexually suggestive comments while thrusting his hips.

The actions were found by the company to have clearly amounted to sexual harassment. As a result, Smith Enterprises chose to discipline Hucsko, and offered him the opportunity to take sensitivity training and make a direct apology to the complainant – the latter which he refused to do.

The employer found that Hucsko’s refusal to apologise demonstrated a lack of remorse for his misconduct, significantly damaging the employment relationship, and ultimately terminated him for just cause. A just cause dismissal is frequently characterised by the courts as the “capital punishment” of employment law – leaving the employee without any termination notice, severance, or even EI benefits.

At trial, the judge held that Hucsko was wrongfully dismissed and awarded him 20-months’ notice. The trial judge held, in part, that it was “unclear” whether the employer had found the comments as having amounted to sexual harassment, thereby making the employee’s failure to apologise for his conduct insufficient cause for termination in the circumstances.

The employer rightfully appealed the decision. The Court of Appeal overturned the lower court’s decision, and upheld the dismissal for cause. Ruling in favour of the employer, the Court found that the trial judge incorrectly applied the test for just-cause termination, which involves three steps: 1) determining the nature and extent of the misconduct; 2) considering the surrounding circumstances; and 3) deciding whether dismissal is warranted.

The Court of Appeal held that this just-cause dismissal was appropriate for the following reasons: The comments met the definition of sexual harassment under the employer’s harassment policy; the comments were demeaning, undermined the dignity of the complainant, were based on gender; and the employee’s awareness that these comments were unwelcome contributed to creating a poisoned work environment for the complainant. It also considered Smith’s workplace harassment policy, the employee’s senior position and the degree of trust it required.

Even with these findings, the Court of Appeal still acknowledged that Smith Enterprises’ decision to issue corrective action rather than terminate for cause was a proportionate response.

The Court of Appeal held that, despite corrective action being warranted for the findings of sexual harassment, Hucsko’s adamant refusal to apologise for his misconduct left the employer with no choice but to find there to have been a complete breakdown in the employment relationship.

This decision provides helpful guidance to employers investigating or terminating for sexual harassment, highlighting the importance of remedial actions, such as sensitivity training and apologies, when it comes to defending the discipline imposed, up to and including termination. In this case, a simple apology from the employee and acknowledgement of wrongdoing would have made the difference between keeping or losing his employment.

As for employees, apologising for a wrongdoing, particularly one following an investigation, can not only protect your job – it can also prevent a just-cause termination. In the right circumstances, employees should consider doing so proactively.

BY HOWARD LEVITT AND ANOUSHKA ZACHARIAH

Howard Levitt is Senior Partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada. Anoushka Zachariah is an associate with Levitt Sheikh.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/apologizing-can-be-hard-refusing-to-do-so-can-cost-you-your-job

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