Misconduct with no remorse rarely goes unnoticed. The courts agree.
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In 2017, A.O. Smith Enterprises Limited was faced with a dilemma. A female employee alleged sexual harassment against a Senior Product Designer (the “Designer”) — a 20-year employee of the organization.
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The female co-worker alleged that the Designer suggested she “sit on the lap” of a colleague to discuss next steps on a project. Another time she alleged he asked if she “danced on the tables” at a work dinner.
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On another occasion, when the complainant was speaking to the Designer about her home gardening, she alleged he said “any reason for you to bend over and go down on your knees.” When the complainant asked him to forward her a Powerpoint presentation, she alleged he made a crass remark about her being “pumped” under the skirt while making a thrusting gesture with his hips.
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A.O. did what every employer should do. It conducted an investigation that included interviewing the complainant, the Designer, and relevant witnesses. According to A.O., he claimed not to recall making the specific comments, but said if he did make them he denied that they contained any sexual connotation. With regard to the hip thrusting gesture, the Designer said the action was caused by his chair getting stuck in a rut in the carpet. A.O. found no such rut.
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Upon conclusion of the investigation in July of 2017, A.O. found that the Designer had made the inappropriate comments, that his conduct was unacceptable and would not be tolerated. He was provided with a final warning, and required to take some remedial training and apologize to the complainant.
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While he did agree to the sensitivity training, the Designer refused to apologize to the complainant.
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Following the refusal, A.O. terminated the Designer for just cause. He sued for wrongful dismissal damages.
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At trial, the Designer largely denied wrongdoing and argued the complaints against him were motivated by his having challenged his female co-worker in a meeting. The Designer reigned triumphant at that level of court. The trial judge ultimately found his conduct did not justify the conclusion that there had been an irreparable breakdown in the employment relationship.
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But of course, the story doesn’t end there.
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At appeal, the trial judge’s decision was overturned. The Appeal Court decision provided, in part, that the Designer “had to either accept the appropriate disciplinary measures imposed by the employer or risk losing that position.”
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With regard to the incidents complained of by his female co-worker, the Appeal Court found “there is no doubt that they constituted sexual harassment of the complainant.” The Court found the comments were demeaning and undermined the dignity of their recipient. The Designer’s termination for just cause was reinstated.
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This case offers lessons across the board. Normally employers don’t conduct employee investigations well, leaving them open to scrutiny and bereft of legal leverage. A.O. was an anomaly. It investigated immediately and offered remedial actions quickly to close the matter. It was faced with making tough choices and A.O. followed through.
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For employees, reasonable options following misconduct shouldn’t be disregarded. A lawyer can often never muscle through the findings of a fair, prompt investigation offering reasonable options to make amends. Saying sorry could have given the Designer a second chance. He put his job on the line instead, and lost.
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On this week’s questions:
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Q. I have worked for my company for 20 years and have been promoted every few years. I have been working remotely and my employer wants me to move from a management position to a purely sales position. This means I may lose my direct reports, but that I could earn greater compensation if I were only compensated based on sales. Do I have to agree to this? I know I am working remotely but I do like managing a team and feel that makes me more marketable for other positions in the future.
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A. Changes to your role, including the removal of your direct reports, may amount to a constructive dismissal of your employment. Similarly, if your employer is changing fundamental terms of your employment, including the way you are paid, that could also contribute to a constructive dismissal claim. If your employer is removing your right to a base salary and potential bonus in exchange for a purely commission-based compensation scheme, the changes may very well be disruptive to your income. Changes of this kind, in my view, do not necessarily have to be agreed to unless they are comparable to your current role. I think all employees should be somewhat flexible in the face of the pandemic when it comes to taking on different or varying job responsibilities in order to meet some of the business needs of their employers. That notwithstanding, if the changes are fundamental and are disruptive to your everyday living, a constructive dismissal claim may be warranted. Get legal advice now.
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Q. I was wrongfully dismissed after missing work during a period of COVID isolation. My employer said that they attempted to contact me several times but I don’t have any recollection of them calling me. I thought I was protected based on a COVID leave. Were they allowed to dismiss me?
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A. No, employers are legally required to accommodate COVID-related leaves. If your COVID leave was reasonable in length, the termination of your employment may not have been warranted. All communications between employer and employee during a COVID leave should be in writing. If you did not receive notice in writing with respect to the consequences you would face as a result of failing to communicate during your COVID leave, your case may be strengthened. If you have received a termination package you should seek legal advice.
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Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.
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The content of this article is general information only and is not legal advice.
