In Hucsko v A.O.Smith Enterprises ( 2020 ONSC 1346) Taylor J. had a situation where a 60 year old male employee interacted with a fellow manager in the following fashion:
3 Samar Niazi began her employment with the defendant in 2014 as a Project Manager. In her position she interacted with the plaintiff but their lines of report were different. The plaintiff worked on projects being managed by Samar Niazi.
4 On June 28, 2017, Samar Niazi made a complaint to Nodine Kalcic, the Human Resources Manager of the defendant, regarding four incidents involving she and the plaintiff.
5 She reported that on the day following a managers’ dinner meeting, during the course of a conversation with the plaintiff about the previous evening, she said everyone “had a good time”. The plaintiff then asked if she had danced on the tables. She told him that his comment was inappropriate and she terminated the conversation.
6 The second incident reported by Samar Niazi involved a conversation between she, the plaintiff and Aymen Abdel-Rehim, the Product Development Engineering Manager of the defendant and the plaintiff’s immediate superior. They were discussing the next step to be taken on a project. The plaintiff said to her that she needed to go and sit on a male coworker’s lap and ask him nicely to provide information which was needed. She said both she and Aymen Abdel-Rehim told the plaintiff that his comment was inappropriate. In her written complaint, Samar Niazi did not provide dates on which the first two incidents occurred.
7 The third incident occurred during the week of June 19, 2017. She was at the plaintiff’s desk. They had a discussion about gardening. The plaintiff said to her that any reason for her to bend over and go down on her knees was good. She did not say anything and walked away from the plaintiff’s desk.
8 The fourth incident occurred on June 26, 2017. This interaction again occurred at the plaintiff’s desk. They were discussing a PowerPoint presentation about a project on which they were both working. Plaintiff began composing an email. Samar Niazi’s name was the first of the recipients. She made a comment about being at the top of the list. The plaintiff responded by saying “of course you are on top, you are getting pumped from under the skirt so you cannot stand anymore”. As he made this comment the plaintiff made multiple thrusting gestures with his hips. She was shocked by the comment and the gesture. She decided to make a report to Human Resources.
Ms Naizi was not cross examined by Plaintiff’s counsel.
The Plaintiff testified as follows:
12 With respect to the dancing on tables comment, the plaintiff testified that he and Samar Niazi had a discussion before the managers’ dinner about her not wanting to attend. He encouraged her to go to the dinner meeting. The next day Samar Niazi said she was very happy she had gone to the dinner meeting and everyone enjoyed themselves. The plaintiff asked if everyone was dancing on the tables. He meant this to suggest that everyone had had a lot of fun.
13 The plaintiff testified that in a meeting with Aymen Abdel-Rehim and himself, Samar Niazi was complaining about not receiving necessary information from another coworker by the name of Simon. The plaintiff said he told her to sit on him until he produced the information she needed. He said he intended to convey to Samar Niazi that she had to pin down the coworker until she received the information she required.
14 The plaintiff explained that the down on your knees comment was made during the course of a conversation he had with Samar Niazi about gardening. He said he suggested that she use a kneeling pad while removing weeds from her lawn. He said he did not make a thrusting gesture with his hips. Rather, his chair became stuck in a rut in the carpet in his cubicle which necessitated a thrusting type gesture to extract the chair from the rut in the carpet.
15 With respect to the pump the skirt comment, the plaintiff testified that he and Samar Niazi were discussing a difficult project which they had both worked on and which was nearing completion. She was the Project Manager. He told her that she would be the subject of much praise for bringing the project to a successful completion. According to the plaintiff he told Samar Niazi that she was going to have so much sunshine pumped up her skirt that she would not be able to sit down. He explained this to be a colloquialism from a 1970s movie. It means to praise someone or give someone a lot of credit.
There is no reference in the judgment a to what movie he was referring to.
Now you would think that it would be important for the Court to determine whether in fact the comments were of a sexual nature.
Apparently that was not relevant.
40 The focus of this trial was about whether the comments made by the plaintiff to Samar Niazi amounted to sexual harassment. There was much evidence and discussion about whether the comments made by the plaintiff to Samar Niazi were sexual in nature or were harassing generally. Because of the view I take of the evidence, it is unnecessary to categorize the comments made by the plaintiff. It is unclear to me whether the defendant concluded that the plaintiff’s conduct amounted to sexual harassment. Regardless of how the plaintiff’s comments were categorized, they did not justify summary termination of the plaintiff’s employment.
This is where the case gets weird.
The Defendant conducted an internal investigation and concluded that inappropriate comments had been made to some degree.
Rather than fire the Plaintiff , the Defendant told the Plaintiff that if he underwent some sort of training and provided a direct apology to Ms Niazi , that would end the matter.
The Plaintiff then hired a lawyer who wrote to the Defendant and said that his client would take the training but that he refused to make an apology which admitted any wrongdoing on his part.
The Defendant then fired the Plaintiff for cause for the following reasons:
a) making inappropriate and vexatious comments to a coworker;
b) the failure to show remorse; and,
c) wilful insubordination based on a refusal to accept and comply with corrective action determined to be appropriate by the defendant.
Apparently the Judge was quite upset at the Defendants decision to fire the Plaintiff after the lawyer’s letter said that his client would not provide a letter of apology.
44 The termination of the plaintiff’s employment followed quickly after receipt of a letter from the plaintiff’s lawyer. Rather than responding to counsel’s letter and attempting to negotiate the wording of a letter of apology acceptable to both plaintiff and the defendant, the defendant chose to end the plaintiff’s 20 years of employment. I conclude that an important factor in the defendant’s decision to terminate the plaintiff’s employment was that he had consulted a lawyer. This is not a justifiable reason to dismiss an employee of long service.
With all due respect, it would seem likely that the reason for the termination coming shortly after receiving a lawyers’ letter was not because he had the audacity to seek legal advice, but rather of the position conveyed in the letter that the Plaintiff would not apologize because he felt that he had done nothing wrong.
It is very difficult to feel confident that someone will change their behavoir in the future if they truly believe that they have done nothing wrong in the past.
That presumably is what the Defendant referred to in the termination letter when they cited lack of remorse as a ground for termination.
This is how the Judge sized up what the Defendant should have done:
45 In my view, the defendant was faced with a situation in which two employees were in a difficult working relationship. Samar Niazi had made it clear that she would not accept a token apology. She did not want the plaintiff to be given “a slap on the wrist”. The defendant was entitled to make a decision about which of two employees it wished to continue to employ. The defendant was entitled to terminate the plaintiff’s employment on the basis of an incompatible working relationship with Samar Niazi. What the defendant was not entitled to do was create a situation in which it could rely on just cause to terminate the plaintiff’s employment.
In other words, the Defendant could have also chosen to terminate Ms Niazi and simply provide reasonable notice?
I think if the Defendant solved the “problem ” by firing the victim, it would have faced numerous legal actions with huge monetary consequences.
However the Court found that absent a contractual obligation to do so, there is no duty of procedural fairness before terminating someone for cause and furthermore the employer can properly rely on additional evidence that they obtained after the dismissal.
My Comments:
The issue is not whether the employer made a reasonable decision about just cause. The issue is whether the Court finds that the employer has proven on the balance of probabilities that the plaintiff committed an act of just cause.
Thus where the employer conducts no investigation or a poor investigation but the Court finds the employee committed theft, just cause has been proven.
Where the employer conducts a perfect investigation which finds the employee guilty of theft but the Court disagrees with that conclusion, the employee will succeed.
Remember an investigation report is itself is NOT evidence of the matters set out in report. Each of those facts must be independently proven in Court.