The Ontario Occupational Health and Safety Act requires an employer to conduct a workplace investigation after an incident of workplace violence, harassment or sexual harassment is alleged to have occurred in the workplace. The conduct of the respondent during and following an investigation can be very important and play a significant role in corrective action. This is reflected in Ontario Court decisions whereby terminations for cause were upheld after the respondent failed to show any remorse for their actions at the conclusion of the investigation and it was found that the allegations were true.
This was the case in Hucso v A. O. Smith Enterprises Limited, 2021 ONCA 728, where the respondent refused to apologize to a female employee after an internal workplace investigation determined that he sexually harassed her on four occasions. The employer imposed corrective action but the respondent denied the allegation and refused to accept or comply with the discipline imposed. As a result, the respondent’s termination for cause was upheld.
An arbitrator in British Columbia very recently affirmed that same view. In MTU Maintenance Canada Ltd. V International Association of Machinists & Aerospace Workers, Transportation District Lodge 140, 2022 CanLII 60953, a just cause termination of employment was upheld after the respondent failed to show any remorse for his actions at the conclusion of the investigation.
An external investigation was conducted after an employee complained that the respondent engaged in behaviour such as yelling and physical aggression toward her. The investigation concluded that the respondent’s conduct created an environment where the employee feared for her safety. However, the respondent failed to accept the investigation nor its finding and was convinced that there was a conspiracy to have him terminated. The respondent sent a number of inappropriate emails to his employer throughout and following the investigation questioning the integrity of the process. In fact, the respondent “doubled-downed” on his conduct by accusing his employer of “systematic discrimination” and a “toxic work environment.” The arbitrator found that these actions were not of a person who was “sorry for their role in the conflict, nor do these actions evoke any confidence that such behaviour will cease in the future.”
The arbitrator wrote,
There is no question in this case the grievor’s [respondent’s] conduct warrants some measure of discipline. The Union concedes this point. The real question in this case, then, is whether termination was an excessive disciplinary response. Having considered all of the relevant factors, I have concluded it was not.
The arbitrator partly attributed its decision to the respondent’s lack of remorse and stated that it had “fundamentally and irreparably” damaged the employment relationship rendering it impossible to continue. As a result, the respondent’s termination for cause was upheld.
Following an investigation, an employer should take appropriate corrective action if the respondent is found to have engaged in misconduct. This will not always result in the respondent’s termination. However, these cases demonstrate the importance of remorse and assessing an employee’s acknowledgment and ownership of their misconduct. The lawyers at Heeney Vokey LLP often act as independent third-party investigators and have extensive experience in this area. If you have questions regarding appropriate corrective action, the merits of just cause termination, require workplace investigation guidance or would like us to investigate the allegation itself, we would be happy to assist.
 Occupational Health and Safety Act, RSO 1990, c. O.1, at s. 32.
 Hucso v A. O. Smith Enterprises Limited, 2021 ONCA 728.