Rhonda Levy, Monty Verlint
Ontario, Canada: a tale of violence and harassment in the workplace and judicial sanctions for an employer that handled it poorly
As employment lawyers that represent management, we invariably counsel our clients that they must treat complaints of harassment in the workplace seriously, and take immediate steps to investigate them. A recent case, Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343, tells the story of an employer that did the opposite, and paid a steep price.
The targeted employee, age 73, worked for the employer for approximately 19 years. A co-worker was abusive, harassing and unprofessional toward her over a prolonged period of time. The employee sent an email about the inappropriate behaviour to the company’s president twice. After no action was taken in response to her first email, the employee sent the president this second email:
I am writing to you again to let you know that I am at my wit’s end and would like some sort of action to take place. I do not deserve to work in an environment where people are allowed to constantly yell and say inappropriate insults to me. Please look into this matter.
Once again, the employer took no action. A little more than a month later, the co-worker slapped the employee across the face three times. The employee complained to the company’s managing director and filed a police report. That same day she was terminated without notice or compensation for the loss of employment benefits in retaliation for making the complaint.
The employee commenced an action against the employer and her co-worker. The employee and her co-worker reached a settlement. The company did not respond to the employee’s claim and was noted in default. The default judgment motion was in relation to the employee’s entitlement to compensation in lieu of notice and damages against the company.
The Ontario Superior Court awarded the employee:
- 19 months’ salary in lieu of notice, and employment benefits over this period;
- $15,000 in damages for the assault and battery incident on the basis of the company’s vicarious liability; the assault took place in the course of the employee’s discharging her role and the employer failed to provide a safe working environment;
- Aggravated damages of $50,000 warranted by the company’s neglect to investigate the employee’s complaint or take steps to address the co-worker’s inappropriate conduct, “in the face of [the employee’s] heightened frustration and anxiety as the work environment became more toxic…”; and
- Costs of the motion at $10,000.
Bottom Line for Employers
Employer obligations in Ontario with respect to workplace violence and harassment are set under Ontario’s Occupational Health and Safety Act (OHSA). All employers subject to the OHSA must prepare policies with respect to workplace violence and workplace harassment and review them at least once a year. If there are six or more regularly employed workers in a workplace, the policies must be in writing and posted in the workplace where workers are likely to see them. Employers must also set up programs to implement the policies. In addition, employers must conduct appropriate investigations into incidents and complaints of workplace harassment. Incidents or complaints should be treated seriously, acted upon promptly, and sufficient time and resources should be devoted to an investigation.
Although the Bassanese decision makes no reference to the employer’s obligations under the OHSA and does not indicate whether the employer had workplace violence and workplace harassment policies or programs in place, the narrative description of the facts leading up to the employee’s claim suggests the employer did not satisfy its legal obligation under the OHSA to investigate the employee’s complaints of workplace harassment. The lesson learned is that employers that ignore this obligation can be judicially sanctioned with an order to pay the victim aggravated damages. Should an employee be physically assaulted by a co-worker after making complaints of harassment that the employer does not investigate, the employer can be ordered to pay damages for the assault on the basis of its vicarious liability. All of these damages are on top of the substantial damages for the failure to provide reasonable notice of termination at common law.