In order to ensure the safety of workplaces, it is an employer’s responsibility to investigate complaints of harassment and, if required, take steps to adequately address the situation. However, employers do not always comply with these requirements. The recent Ontario Superior Court of Justice case of Bassanese v. German Canadian News Company Limited et al., is a cautionary tale of the financial consequences when an employer ignores complaints of harassment and terminates the employee’s employment rather than addressing the complaints.
In this case, the employee was 73 years old and had worked for German Canadian News Company (“GCNC”) in an administrative role for approximately 19 years. For a period of several months in 2018, the employee was subjected to ongoing harassment by a co-worker.
On April 17, 2018, the employee filed her first complaint with the President of GCNC, stating that she was being constantly harassed by the co-worker, who would yell and scream at her and tell her that she was an idiot and she should be fired. The employee requested that GCNC “step in and make sure this never happens again.” GCNC wrote back the same day saying that they were short-staffed but it would run the matter by its HR person.
On May 7 and 8, 2018, the employee followed up with GCNC and received a response on May 8, 2018 to say that it had raised the issue with its HR person and would be taking further steps.
On May 15, 2018, the employee wrote to GCNC again and stated, “I am writing to you again to let you know 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.”
On May 28, 2018, there was a further exchange between the employee and GCNC but no action was taken.
On June 21, 2018, the employee was slapped across her face three times by the co-worker. The employee complained to GCNC and filed a police report. Rather than address the complaint, GCNC terminated the employee’s employment that same day without the provision of notice or compensation for loss of employment benefits.
The employee then commenced an action against both GCNC and the co-worker. The employee and the co-worker settled outside of court.
$194,433.17 of Damages Awarded
In considering the employee’s termination of employment, Justice Sossin determined the employee was entitled to 19 months’ common law notice and payment in lieu of benefits in the amount of $129,433.17.
In regard to the harassment experienced by the employee, CGNC was ordered to pay $15,000.00 to the employee for assault and battery for the co-worker’s slap due to its vicarious liability.
The employee was also awarded aggravated damages in the amount of $50,000.00. Justice Sossin referred to the case of Whiten v. Pilot Insurance Co. in which the Supreme Court of Canada stated that the purpose of aggravated damages is to compensate a plaintiff for the “additional harm caused to the plaintiff’s feelings by reprehensible or outrageous conduct on the part of the defendant.” Justice Sossin also considered Keays v. Honda Canada Inc. and Boucher v. Wal-Mart Canada Corp. when analyzing the applicability of aggravated damages. In this case, GCNC’s ignored the employee’s complaints, failed to investigate the complaints, and failed to take steps to address the co-worker’s behaviour. Taking into account GCNC’s neglect of the employee’s anxiety and frustration as the workplace became more toxic, Justice Sossin determined that aggravated damages were warranted.
Lessons for Employers
Employers have a responsibility to ensure that complaints of harassment are properly investigated and are dealt with appropriately. Ignoring complaints of harassment in the hopes that they disappear could result in costly damage awards should the matter proceed to trial. While the harassment in this case was quite overt, culminating in an assault, harassment at the workplace can take a variety of forms, all of which must be addressed as required by law, failing which employers can be found to be liable. Although not discussed in the above case, Ontario’s Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) outlines the statutory requirements of employers when it comes to workplace violence and harassment, and compliance is mandatory.
Lessons for Employees
If you are experiencing harassment at work, it is important to document the situation and submit a written complaint to your employer. This helps create a record should you need to rely on it at a later time. If your employer has more than 5 employees, then it is required under the OHSA to post in the workplace its policy on workplace harassment and workplace violence. This policy should outline a system for making your complaint – follow it if possible. In the case above, the employee’s written complaints assisted the court in finding that the employer did not address her concerns and it resulted in damages being awarded against the employer for failing to address the complaints of harassment.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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