Ontario Court of Appeal Rules That Employee’s Refusal To Apologize for Sexual Comments Justified His Termination

Written on behalf of Peter McSherry
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In a recent Ontario Court of Appeal decision, the court ruled that an employee’s refusal to apologize to a coworker for inappropriate comments justified his termination.

Employee Makes Inappropriate Comments and Is Issued Final Warning

The employee had worked for the employer for 20 years as a senior product designer.

In 2017, a coworker made a formal complaint to the employer about four separate incidents in which she claimed the employee had made inappropriate comments to her, all of which were sexual in nature.

In response, the employer conducted an investigation, which included interviewing the employee about the incidents. The employee either denied making the comments or claimed that they were not sexual in nature.

Following the investigation, the employer concluded that the employee had made the inappropriate comments, and met with him on July 10, 2017. At that meeting, the employer gave him a memo summarizing its investigation and issuing a final warning to the employee. It stated that if the employee engaged in any other instance of inappropriate comments of the same nature, he would immediately be discharged. It also required him to participate in sensitivity training. Finally, the memo stated that he would be required to provide a direct apology to the coworker who had filed the complaint.

Employee Refuses to Apologize and Is Terminated

However, the employee did not agree with the investigation’s conclusions and asserted that he had not done or said anything inappropriate to the co-worker.

The employee then consulted with a lawyer, who sent a letter to the employer stating that the employee was willing to comply with the training requirement, but was not willing to apologize to his coworker.

The employer initially suspended the employee, and then, on July 25, telephoned him and read a letter that was subsequently delivered to him. The letter stated that the employee’s employment was being terminated for cause effective immediately due to “an irreparable breakdown in the employment relationship” based on his inappropriate comments, his lack of remorse and his refusal to comply with the conditions outlined in the memo. The employer qualified his behaviour as “serious, willful insubordination that cannot be condoned”.

The employee commenced an action in damages against the employer for wrongful dismissal.

Lower Court Rules In Favour of Employee


The trial judge found that the employee’s comments did not justify his summary dismissal and that the employer had not concluded that his conduct amounted to sexual harassment. The trial judge further noted that, despite the employer’s claim of “willful insubordination” for not apologizing to his co-worker, the memo had not specified whether the apology could be in writing or that the employee could apologize only for a misunderstanding of his comments. Thus, the judge criticized the employer for failing to negotiate the content of the apology with the employee before terminating his employment after 20 years of service.

Ultimately, the trial judge held that the employee’s conduct “did not justify a conclusion that there had been an irreparable breakdown in the employment relationship.” He thus ruled in favour of the employee and went on to calculate the appropriate period of notice and awarded damages in lieu of notice.

The employer appealed the decision to the Ontario Court of Appeal.

Court of Appeal Allows Appeal and Upholds Employee’s Termination

The Court of Appeal began by addressing the employer’s claim that the trial judge had erred with regard to his findings on sexual harassment. The court held that the trial judge had made a palpable and overriding error of fact when he stated that it was unclear whether the employer had found that the four comments constituted sexual harassment and allowed the employer’s first ground of appeal.

The court then turned to the second ground of appeal with regard to the trial judge’s finding that the employer did not have just cause to terminate the employee. In assessing whether there had been a breakdown in the employment relationship, the court stated:

“The refusal to apologize is only part of the misconduct that the [employer] had to consider when deciding whether there has been a breakdown in the employment relationship. The refusal to apologize did not occur in a vacuum. The degree of seriousness of the misconduct that led to the discipline, and then to the dismissal, is critical to the ultimate assessment of the propriety and proportionality of the employer’s response. But the trial judge eschewed this analysis, finding instead that the nature and seriousness of the [employee]’s comments were irrelevant and focusing solely on his refusal to apologize.”

As a result, the court held that the trial judge erred in law by failing to find that the employee’s failure to accept the opportunity offered by the employer to remediate the situation resulted in an irreparable breakdown in the employment relationship that could not be tolerated by the employer.

Finally, on the third ground of appeal, the court held that the trial judge had erred by failing to find that the employer had just cause to terminate the employee, finding that its decision to terminate in the circumstances was justified and appropriate.

In the result, the court, therefore, allowed the appeal, set aside the lower court judgment, and dismissed the employee’s claim.



Contact Peter A. McSherry Employment Lawyer For Experienced Advice on Wrongful Termination Matters

My office can provide you with the resources of an experienced and skillful Guelph wrongful dismissal lawyer. I can ensure your case is handled properly and efficiently for a fair settlement. Contact me today by phone at 519-821-5465 or by e-mail to schedule a consultation.