The Ontario Court of Appeal has recently affirmed that sexual harassment is no more acceptable in an industrial workplace than it is in any other workplace.

In a case for wrongful dismissal brought by a former security supervisor at General Motors the Court rejected the argument that an industrial plant is by nature "a rough environment with abuse and sexual innuendo flowing freely in all directions, and the female employees strong enough to handle the exchanges".

The Court found that an employee's conduct, which included touching and kissing the female guards, propositioning them, telling dirty stories and giving bear hugs accompanied by growling noises was grounds for summary dismissal.

GM had permanently posted an anti-harassment policy on bulletin boards and seminars were held - including one where the employee was told that sexual harassment could lead to termination. The Court decided that GM met its responsibility and was entitled to rely upon supervisors to implement the policy. American case law advancing the "rough environment defence" was rejected.

the Court held that sexual harassment was just cause for immediate dismissal, and that no warning was required.

THE "FRUSTRATED" EMPLOYMENT CONTRACT

I recently presented a paper to employers concerning their obligations to sick employee prior to dismissal.

When is an employment contract "frustrated" by operation of law, thereby relieving an employer of common-law and statutory obligations for payment of termination pay?

The decision to dismiss ill or disabled employees proves a challenging task as the employer is governed by common law and legislative restrictions which may limit the employer's ability to act.

Absence due to illness or disabled employees proves a challenging task as the employer is governed by common law and legislative restrictions which may limit the employer's ability to act.

absence due to illness or injury has to continue for some time before the employment contract is frustrated: once there is no reasonable expectation of an employee's return to work in the reasonable foreseeable future, the employer may take the position that the contract is ended by operation of law and that no termination pay is owed to the employee.

As with any dismissal the, Employment Standards Act rears its head and the employer has to determine whether statutory notice and severance pay are payable to the employee. Even where it appears that there is no entitlement to payment of notice at common law, employment standards adjudicators have awarded payment pursuant to the statute.

The employer must also consider human rights and worker protection legislation prohibiting discrimination on the basis of a handicap, which in some instances legislates accommodation of illness or injury. In this regard the Workplace Safety and Insurance Act, 1997 and the Human Rights Code will play a part in determining if and when an employee can be dismissed for absence due to illness, with or without compensation.

Dismissal of employee on Long Term Disability in some instances may be straight forward. It can be simple matter to have the employee confirm, with a doctor's opinion, that the employee is completely disabled and is unlikely to ever return to gainful employment.

The employer's main concern is providing the employee with an opportunity to review the medical information the employer is acting upon when making its decision to dismiss, to ensure their information is complete. It is only when it becomes clear and that there is no reasonable expectation of a return to work, at least for the foreseeable future, that the employer should move to dismissal.

Other suitable work which may be available to the employee must be considered by the employer in view of the principles of accommodation.

The Ontario Human Rights Code ("The Code") makes it an offence to discriminate in the work place on a number of grounds, including "handicap", which is given wide definition. Handicap is broadly defined to include both physical and mental handicaps/

Prior to dismissing on the basis of frustration it must be determined that the needs of the disabled employee cannot be reasonably accommodated without undue hardship to the employer. Undue hardship is determined in the context of cost, outside sources of funding and health and safety considerations. Generally speaking, it is not an easy defence for an employer to establish.

If the defence of frustrations fails, the employee will be entitled to damages equivalent to reasonable notice as well as any statutory remedies.

ON THE LIGHTER SIDE......

A lawyer opens the door of his BMW, when suddenly a car came along and hit the door, ripping it off completely . When the police arrived at the scene, the lawyer was hopping up and down with rage, complaining bitterly about the damage to his BMW.

"Officer, look what they've done to my Beeemer!!!!" he shrieked.

"You lawyers are so materialistic, you make me sick!!" retorted the officer, "You're so worried about your stupid BMW, that you didn't even notice that your left arm was ripped off!!!"

"Oh no....' replied the lawyer, looking down and noticing for the first time the bloody stump where his left arm had once been.

"Where the hell's my Rolex???"

• "Since my last reports, this employee has reached rock bottom and has started to dig."
• "His men would follow him anywhere, but only out of morbid curiosity."
• "I would not allow this employee to breed."
• "This associate is really not so much of a has-been, but more of a definitely won't be."
• "Works well when under constant supervision and cornered like a rat in a trap."
• "When she opens her mouth, it seems that this is only to change whichever foot was previously in there."
• "This employee is depriving a village somewhere of an idiot."
• "This young lady has delusions of adequacy."
• "He would be out of his depth in a parking lot puddle."
• "Gates are down, the lights are flashing, but the train isn't coming."
• "He sets low personal standards and then consistently fails to achieve them."