Manager fired for slapping female co-worker on the buttocks has third appeal rejected but is granted termination pay
The Court of Appeal for Ontario has thrown out the appeal of a fired employee who challenged a ruling that said his termination after he slapped a female co-worker's buttocks was justified.
The appellant, who was a 30-year employee in a managerial role with a spotless record, was dismissed after he slapped the buttocks of a female co-worker in 2014. According to the appellant, the incident was accidental, and he meant to slap his co-worker's hips, but she turned so his hands touched her buttocks instead.
The victim's entry in an email, which was used by the trial judge as testimony, read that she felt "very awkward" after the incident.
"I was thinking about this, and I felt upset. I don't want the other men in the office to think it is OK to do that to me," the victim said.
The appellant apologised to the victim multiple times after the incident, but the latter felt he was not sincere about this apology. The matter reached the company's HR manager, which eventually led to the appellant's termination in the company. According to the court, he did not receive severance, termination, or vacation pay. In the trial judge's decision, they found that the respondent "had met its onus and established that summary dismissal was the appropriate response in all the circumstances."
Appellant challenges ruling
The appellant, however, challenged the decision and took it to the Court of Appeal for Ontario, arguing that the two of the trial judge's factual findings. He also argued that that the trial judge erred in law in concluding that there was just cause for his termination, citing the absence of breakdown in the employment relationship and the lack of other disciplinary measures before his termination. The appellant also sought benefits under the Employment Standards Act, which was not addressed by the trial judge.
Read more: Sexual harassment in the workplace is an 'epidemic,' says HR survey
In its decision, the appellate court decided to throw out the first two appeals but pushed forward with the last one.
"I would dismiss the appeal from the finding that there was no wrongful dismissal and the award of no punitive damages, but I would allow the appeal with respect to the ESA entitlement and the costs," Justice Kathryn Feldman said.
In throwing out the first decision, Feldman said she would "not give effect to these submissions for two major reasons: the deferential standard of review on findings of fact and credibility; and the detailed reasons of the trial judge for making his factual findings, including the two impugned findings."
For the second appeal, Feldman ruled that there was "no error in the trial judge's approach or analysis."
"He considered and weighed all of the relevant factors. His conclusion is entitled to deference," the justice added.
For the appellant's third appeal, however, the court granted him eight weeks of termination pay. According to Feldman, the situation emerged from an overly familiar workplace atmosphere - as the decision noted that the colleagues were used to joking around each other and making banter in the workplace - one which can no longer be tolerated.
"I would also add that this was a most unfortunate situation that arose out of an overly familiar and, as a result, inappropriate workplace atmosphere that was allowed to get out of hand," said Feldman. "Although some may perceive it to be benign and all in good fun, those on the receiving end of personal 'jokes' do not view it that way. And when things go too far, as they did in this case, the legal consequences can be severe. Every workplace should be based on mutual respect among co-workers. An atmosphere of mutual respect will naturally generate the boundaries of behaviour that should not be crossed."
How should HR handle cases of sexual harassment?
This case brought to the Court of Appeal for Ontario demonstrates the importance of HR's handling of sexual harassment cases in preventing further legal liabilities for the company. Employers are always urged to ensure that they investigate allegations or risk subjecting themselves to court should they mishandle a case of sexual harassment.
Stuart Rudner, founder of Rudner Law, told HRD that employers have the duty to investigate complaints on sexual harassment.
"One is fairly specific: when there are allegations or even suspicions of harassment or sexual harassment, there is an absolute duty in every Canadian jurisdiction to engage in some sort of investigation," Rudner told HRD. “At a broader level, if there is a suspicion of misconduct, we always advise our employer clients to engage in an investigation before dismissing the employee."
According to Rudner, employers may face additional legal liabilities if they push through with a termination, but the court goes against their decision after neglect in the company's internal probe. It’s not surprising then that sexual harassment is a topic of utmost importance to HR as we all head back to the office. According to recent statistics, one in four women and one in six men in Canada reported having experienced inappropriate sexualized harassment at work. For HR leaders, it’s incumbent they follow the law to the letter when it comes to investigations.
“The biggest mistake I’ve seen with HR leaders investigating the [harassment] is a lack of trust,” Jay Polaki, founder of HR Geckos, told HRD. “By that I mean not establishing trust by being transparent through the entire process. Sometimes, employers make the awful mistake of inadvertently punishing the complainant instead of the aggressor by making it difficult for the complainant to work from the same workspace. The aggressor should be removed from the workspace - not the complainant.”
