Canadian Employment Law Today

Canadian HR Reporter, 2020 6 | | October 7, 2020 October 7, 2020 ager was discussing the meeting with Hucsko. She told Hucsko that everyone at the meeting "had a good time" and Hucsko asked if she had danced on the tables. The project manager took this to be a reference to exotic dancing, so she told him that his comment was inappro- priate and ended the conversation. The second incident, according to the proj- ect manager, came during a conversation be- tween her, Hucsko and Hucsko's supervisor. They were discussing the next step for a project when Hucsko said to her that she needed to sit on a male co-worker's lap and ask him nicely for some information that they needed. Both she and the supervisor told Hucsko that the comment was inappropriate. The project man- ager believed the comment was a reference to lap dancing. The third incident — about 10 days before the project manager filed the complaint — hap- pened when the project manager was at Huc- sko's desk. They were discussing gardening when, according to the project manager, Huc- sko said that any reason for her to bend over and go down on her knees was good. The project manager, thinking this was a refence to a sexual position, didn't respond and walked away. One week later, the project manager was one again at Hucsko's desk discussing a Pow- erPoint presentation about a project on which they were working. Hucsko started composing an email and the project manager's name was the first recipient on the recipient list. She com- mented about being at the top of the list and Hucsko replied: "Of course you are on top, you are getting pumped from under the skirt so you cannot stand anymore." The project manager claimed that Hucsko made thrusting gestures with his hips as he said this, which shocked her. After this fourth incident, she decided to complain to HR. The company conducted an investigation into the project manager's complaint and in- terviewed Hucsko on June 29. After the nature of the complaint and who made it were out- lined for him, Hucsko didn't recall any conver- sations about dancing on tables, but he said it was a colloquialism for having a good time. He also didn't remember the meeting at which he had allegedly made the sitting on a lap com- ment, but he explained that it meant to pin someone down so they couldn't get away. He recalled discussing gardening with the project manager but not making the comment about her getting down on her knees. Hucsko remembered making the "pump the skirt" comment to the project manager, but he said it was a colloquialism about "pump- ing sunshine up one's skirt meaning to give a person a lot of praise." He also suggested that the project manager's complaints were moti- vated because he had challenged her at a recent meeting. The company also interviewed the project manager and Hucsko's supervisor. The project manager said that if Hucsko was only given "a slap on the hand" for his behaviour she would have to consider resigning from her employ- ment with A.O. Smith Enterprises. She also said that the issue could be resolved if Hucsko stopped making such comments and recog- nized that they were unwelcome. Hucsko's supervisor confirmed the sitting on a lap comment and agreed it wasn't ap- propriate, although he didn't treat it seriously enough at the time to make a report to HR. He added that the project manager could be sensi- tive to comments made to her. On July 6, Hucsko requested a second meet- ing with the investigators, where he explained that the thrusting gesture during the "pump the skirt" comment was the result of his chair becoming stuck in a rut in the carpet at his cu- bicle. He also said that the dancing on tables comment was directed at the entire group at the dinner meeting, not the project manager specifically. The investigators inspected Hucsko's cubicle but couldn't find a rut in the carpet in which a chair could become stuck. They also searched the internet and found a reference to dancing on tables consistent with Hucsko's explana- tion along with a reference from a 1970s movie about "pumping sunshine up one's skirt" be- ing a form of praise. However, the investigators determined that Hucsko's comments were intended to upset the project manager and constituted harass- ment. The results of the investigation were re- viewed with him on July 10 and he was given corrective action that included harassment training and "a direct apology to the female employee to whom you directed your inap- propriate comments." The apology could be written or verbal and it would have been ac- ceptable to apologize for the project manager misunderstanding his comments, but the company didn't communicate this last part to Huckso. Huckso disagreed that he had said or done anything inappropriate. He obtained a law- yer, who sent a letter to the company dated July 19 and stating that Hucsko would attend any training required by the company but he wasn't prepared to make an apology admitting any wrongdoing. The company suspended Hucsko and he didn't respond to the suspension letter. On July 25, the company terminated Hucsko's employment for cause due to "an irreparable breakdown in the employment relationship" that was caused by his inappropriate com- ments, his failure to show remorse and "willful insubordination based on a refusal to accept and comply with corrective action." When the project manager was informed of the investigation's outcome, she said that she wouldn't accept an apology from Hucsko if it involved "something to the effect that he was sorry she had misinterpreted his comments." Hucsko filed a claim for wrongful dismissal. The Ontario Superior Court of Justice noted that, based on the termination letter — which cited "inappropriate and vexatious com- ments" made to another employee — Hucsko wasn't dismissed for sexual harassment but in- stead for "serious and willful insubordination in response to a direction" from the company. In addition, the post-investigation meeting and instructions for corrective action made it clear that the company didn't feel Hucsko's comments justified termination. The court pointed out that the termination occurred rapidly after the company received the letter from Hucsko's legal counsel, rather than responding to the letter and trying to seek a solution such as negotiating the wording and format of the apology — which was the stick- ing point. As a result, it found that Hucsko's consultation of a lawyer was a factor in his dis- missal — "not a justifiable reason to dismiss an employee of long service," said the court. The court also found that the company was entitled to fire Huckso because of the incom- patible working relationship with the project manager, but that relationship wasn't enough to prove "an irreparable breakdown in the em- ployment relationship" that would constitute cause for dismissal without notice. "[A.O. Smith] was entitled to terminate [Hucsko's] employment on the basis of an incompatible working relationship with [the project manager]," said the court. "What [the company] was not entitled to do was create a situation in which it could rely on just cause to terminate [Hucsko's] employment." A.O. Smith was ordered to pay Hucsko 20 months' pay in lieu of notice of dismissal plus expenses that would have been covered by benefits during the notice period — totalling $187,000. For more information, see: • Hucsko v. A.O. Smith Enterprises, 2020 ONSC 1346 (Ont. S.C.J.). « from REFUSING on page 1 Worker not told of option between verbal or written apology Cases and Trends Cases and Trends The employee agreed to attend training, but he wasn't prepared to make an apology admitting any wrongdoing.

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