A recent Ontario case has considered the issue of termination for cause based on a single event of harassing conduct exhibited by a male employee in a senior role towards a female subordinate. The employee had a long service record of 30 years and no prior discipline record.
In this case, the Court determined that there was just cause for termination. The damage assessment, had the case succeeded, was considerable, set at $337.000.
The employee in question had been with the employer, an elevator engineering company, for 30 years. At the time of the termination, his role was that of Operations Manager. The termination came as a result of a complaint made by a female co-worker. This person was not a direct report to the terminated employee, although he was more senior to her in the organization. The in-house investigation completed by the employer found that the plaintiff “slapped [her] buttocks and also placed his face in the area of [her] breasts and pretended to nuzzle into them”.
No Previous Disciplinary Record
The Court was alive to the argument that this was a single isolated event committed by a long term employee with an unblemished history. This being said, although termination for just cause in this context is rare, where the conduct is serious and particularly where there is no remorse, there may be a finding of just cause, as was the decision in this case. The Court stated:
The conduct was clearly of a serious nature. A slap on a female co-worker’s buttocks is not acceptable conduct in the modern workplace. The act involved non-consensual physical contact on a sexual part of [the colleague’s] body. [The Plaintiff] was not her direct supervisor but was a senior person in the office, with whom [the colleague] had to work. [The Plaintiff] ought to have been aware that this conduct was unacceptable, especially when the Anti-Harassment Policy had been presented to the employees eight days before the incident.
[The Plaintiff]’s conduct following the incident is particularly troublesome. Although he apologized to [the colleague], he did not demonstrate an understanding that his conduct was unacceptable, or the effect it had on [her]. Immediately after the incident, when [the colleague] was clearly upset, he asked why she was upset when she had punched him in the shoulder in the past. He maintained his position that the slap on a female co-worker’s buttocks is equivalent to a punch in the shoulder. He denied that his action was a form of sexual harassment or assault and has maintained that position at trial. He made a formal complaint of misconduct against [the colleague] when it became clear that his employment may be terminated.
Just cause was found. This is an important case dealing with this argument in the modern era when single offences are likely to be taken more seriously.
Lack of Accountability Plays a Role
The Court was also influenced by the fact that the plaintiff had failed to offer a sincere apology and did not take responsibility for his offensive conduct. Also, the fact that he had initially denied his conduct was troubling.
Also influential was the plaintiff’s conduct in filing a retaliatory complaint against his accuser due to an alleged separate event that had taken place months earlier.
Inflammatory Conduct by the Employer
At trial, the usual order was made prohibiting witnesses or others in the courtroom from advising future witnesses of prior testimony. The female victim, however, advised such pending witnesses of her testimony, which the judge found was promoted by the employer.
Further, the employer’s media consultant advised forty media contacts of “sensationalist” statements with respect to the expected events of the trial stating “it’s sex, drama, termination, and a legal question that could potentially affect every work environment in Canada”.
The judge found that this communique was intended to influence the plaintiff or was an attempt to influence the court. This the judge found, was inflammatory conduct and also the statement included allegations not proven at trial.
The judge was clearly disturbed by this conduct which is expected to see its expression in the costs award, which has yet to be concluded.
Take Away for Both Sides
Abusive workplace conduct, particularly physical, whether sexual or otherwise is a serious allegation that may form the basis for termination for cause, even if the incident is isolated.
Get Advice and Know Your Rights
This is a complex important issue. Whether you be the employer or the employee, legal advice will be the foundation of your actions. Understand the law and issues on this and indeed, on and all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.
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