Employers who fail to take allegations of harassment and violence seriously and fail to deal with employee complaints in good faith can face major cost consequences if the matter is brought before a court in Ontario. Employers are subject to various statutory requirements with respect to workplace harassment and violence and recent attention from courts and legislators to both issues has resulted in increasing penalties for employers who fail to take adequate steps to address and prevent violence and harassment in their workplaces. In a recent decision, Bassanese v German Canadian News Company Limited et al. [Bassanese] an employer whose employee had complained of harassment and violence before termination was ordered to pay nearly $130,000 in notice damages in addition to $65,000 in damages arising out of the violence and harassment.
Background
In Bassanese a 73 year-old administrative employee was dismissed from her employment after she’d made several serious complaints of harassment and violence against one of her co-workers. The co-worker had engaged in a course of harassment over an extended period of time. The harassment included yelling and screaming, calling the employee an idiot and suggesting that the employee ought to be fired. On April 17 the employee emailed a complaint to her supervisor stating that she was “being constantly harassed” by her co-worker and “being called an idiot and that [she] should be fired”. The employee stated that she wanted the supervisor to step in and make sure this never happened again. The employee’s supervisor responded by indicating that the company was short-staffed that week, but that he would “run it by” the company’s human resources representative.
After the employer failed to take substantive action, and with the harassment continuing, the employee again complained to her supervisor on May 7 and May 8, but no further steps were taken. On May 15, the employee again followed up with her supervisor, claiming that she was at her “wit’s end” and pleading that the company look into her harassment complaint. The harassment culminated in violence on May 28, when the employee’s co-worker slapped her across the face three times in the course of a workplace interaction between the two. The employee filed a complaint with her employer and a police report was filed in response to the incident. The employee’s employment was terminated that same day, which she alleged was in retaliation for filing the complaint against her harassing co-worker. The employee did not receive appropriate notice or compensation in lieu of notice at the time of her dismissal.
The employee filed a claim in court insisting that she was entitled to proper notice of termination and $700,000 in additional damages related to assault, intentional infliction of mental suffering, aggravated and punitive damages. The employee also filed a separate claim against her harasser which was settled out of court.
The Decision
The Court ultimately found in the employee’s favour on several of the issues but failed to award her all of the damages she had requested in her statement of claim. The Court first began by assessing the employee’s reasonable notice entitlement which it determined was 19 months after 19 years of service with the employer. The relatively large notice period was awarded despite the employee’s relatively junior position partly on the basis of her advanced age which is viewed as an obstacle to reemployment. The Court also awarded the employee 10% of her salary to compensate her for lost benefits over the period.
The Court also awarded the employee $15,000 for assault and battery, finding that the employer was vicariously liable for the violent actions of its employee. The Court relied on the 2008 decision in Piresferreira v. Ayotte [Ayotte] for the proposition that an employer could be held vicariously liable for its employees’ violent acts. The Court also found that the violent act in Bassanese had been similar enough to the violence in Ayotte to justify awarding an identical amount to the employee in the circumstances.
The Court also went on to award the employee aggravated damages in the amount of $50,000. The Court found that the employer had ignored the employee’s complaint and neglected to investigate her complaint or take steps to address the co-workers inappropriate harassing conduct. The Court held that the employer’s neglect in the face of the employee’s heightened frustration and anxiety as the work environment became more toxic warranted aggravated damages in this case.
The Court dismissed the employee’s claim for intentional infliction of mental suffering, noting that the circumstances did not meet the legal test for these types of damages in Ontario as set out in the recent Ontario Court of Appeal decision in Boucher v. Wal-Mart Canada Corp. [Boucher], which requires that a plaintiff establish three elements to make out a claim for intentional infliction of mental suffering:
- The defendant/employer’s conduct was flagrant and outrageous;
- The defendant/employer’s conduct was calculated to harm the plaintiff; and
- The defendant/employer’s conduct caused the plaintiff to suffer a visible and provable illness.
The court found that while the co-worker’s actions were clearly flagrant and outrageous for which the employer was vicariously liable, the court found that the second and third prongs of the test had not been met. Specifically, the Court found that there was no evidence the co-worker engaged in the behaviours for the purpose of inflicting mental suffering on the employee, nor was there any evidence the employee had suffered a medical condition as a result of the conduct, both of which are essential elements of the test for IIMS.
The Court also dismissed the employee’s claim for punitive damages, finding that the aggravated damages awarded were sufficient to deter the sort of conduct the employer had engaged in, in the circumstances. The Court noted that only in circumstances where it did not seem likely that the initial award would be sufficient to deter the conduct complained of would awards of punitive damages be justified.
Takeaway
The takeaway from this case is that courts and tribunals now view an employer’s failure to adequately address violence and harassment in the workplace as an offence warranting major penalties. Employers who fail to take appropriate steps to investigate and prevent workplace violence and harassment may find themselves on the hook for large damage awards to employees who have been victims of workplace violence or harassment.
It is also worth noting that this decision was made without a finding that the employer had breached the Occupational Health and Safety Act (“OHSA”). The OHSA imposes duties and obligations on employers with respect to workplace violence and harassment and failure to comply with those duties can result in additional statutory fines of up to $1,500,000 for corporations, and up to $100,000 for individuals. The employer nor the co-worker were subject to OHSA fines in this case. This being said, employers who adhere to the OHSA’s requirements, by developing strong policies and procedures to combat workplace violence and harassment, will be better equipped to defend against workplace harassment and workplace violence-related claims should they be brought to court.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.
