Employment & Labour

Employers can be liable for employee assaults on colleagues

By AdvocateDaily.com Staff

Employers must perform their due diligence when appointing supervisors following a recent decision in which a magazine company was found vicariously liable for one employee’s assault on another, says Toronto employment lawyer Christopher Achkar.

In his ruling, Ontario Superior Court Justice Lorne Sossin ordered the firm to pay $194,000 in damages plus $10,000 in costs to the plaintiff, a 19-year administrative worker fired by the company, which then failed to defend allegations her colleague was abusive, harassing and unprofessional towards her over a prolonged period.

Of the total damages, Sossin attributed $15,000 to the company’s vicarious liability for assault and battery, following an incident in which the plaintiff claimed she was slapped by a senior member of the accounts team.

“The lesson here is that companies may be found to be vicariously liable for the assault and battery of another employee by someone in a supervisory position and that failing to provide a safe work environment can result in significant award damages for the employee,” says Achkar, founder of Achkar Law.

As a result, he says employers should ensure supervisors refrain from demonstrations of violence or aggressive physical contact — a process that Achkar says can begin at the appointment stage.

“They should only promote people to supervisory positions when these specific employees have demeanour and attitudes that are conducive to a safe workplace,” he tells AdvocateDaily.com. “Supervisors should be trusted and expected to remain calm even in frustrating situations.”

According to the decision, the 73-year-old plaintiff earned around $75,000 per year in an administrative role at the time of her firing, with responsibility for filing, correspondence, invoices to customers, and orders for subscriptions, among others.

The woman claimed that she complained several times in the spring of 2018 to the company president about her treatment by a male colleague who she said constantly yelled and screamed at her.

The decision quotes from one letter in which the plaintiff requested the company boss “step in and make sure this never happens again,” and he responded that he would pass on her concerns to the human resources department.

Following additional complaints, and no further action by the company, things escalated when the plaintiff claimed to have been slapped across the face three times by her colleague, and the matter was reported to police. According to the decision, her employment was terminated the same day, allegedly without notice or compensation, in retaliation for the police report.

Although the plaintiff settled her case against her former colleague in accounts, the company never served a statement of defence and failed to respond to the plaintiff’s motion for default judgment.

In his decision, Sossin concluded the woman was entitled to 19 months of salary in lieu of notice, plus a further 10 per cent over that period to compensate her for the loss of statutory benefits, to account for $130,000 of her total damages.

A further $15,000 was awarded for assault and battery after the judge found the company could be held vicariously liable for the slapping incident, plus another $50,000 in aggravated damages for the employer’s conduct in failing to investigate the plaintiff’s complaint or to address the inappropriate conduct of her colleague.

The employer’s failure to act “heightened [the plaintiff’s] frustration and anxiety as the work environment became more toxic,” and also warrants aggravated damages, Sossin wrote in his judgment.

Achkar, who was not involved in the case and comments generally, says the case is full of useful lessons for employment lawyers. For example, while the plaintiff’s allegations were less serious than those in some notable previous cases, the judge still found aggravated damages were warranted because of the employer’s failure to act.

“Employers should note that aggravated damages need not only come from overly egregious or vindictive acts,” he says. “They need to take complaints about harassment and violence seriously, and should address these concerns and investigate them to ensure they are not allowing a toxic workplace environment to arise from ignoring such complaints.”

In terms of punitive damages, the judge’s failure to award them after considering the existing case law suggests that smaller businesses face a lower risk of awards against them, Achkar says.

“Employers should also ensure that egregious behaviour is addressed in a timely manner because the duration of the conduct will also contribute to the possibility of punitive damages,” he says. “When dismissing an employee, employers should avoid malicious and overtly outrageous conduct. They should not act vindictively towards employees they are dismissing, and should instead remain courteous.”

In addition, Achkar says it was notable that the judge declined to award damages for the tort of intentional infliction of mental distress (IIMD).

“The supervisor’s repeated conduct towards the plaintiff was flagrant and outrageous, but there was no indication the conduct was calculated to harm the plaintiff or any evidence that his conduct caused the plaintiff to suffer from a visible and provable illness,” he says. “Conduct alone is not enough to cause an employer to have committed the tort of IIMD — all three elements of the tort must be present.

“An employer who gives aggressive criticism or discipline to an employee wouldn’t be committing IIMD if they weren’t intentionally doing so to harm the employee,” Achkar says.

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