THE EMPLOYERS' EDGE
Ignore Workplace Complaints At Your Own Peril: Employer Pays Dearly For Supervisor’s Abuse in Constructive Dismissal Claim
We often use this space to highlight what employers should do. However, this week’s blog is about as clear-cut an example of what not to do as an employer as you might ever find. In Osmani v. Universal Structural Restorations Ltd., the employer allowed an abusive supervisor to exploit and demean a vulnerable employee, and repeatedly ignored the employee’s complaints. Accordingly, while the actions of the supervisor were found to be egregious enough to sustain damages against the supervisor personally, the employer’s refusal to do anything, as well as its own conduct, led to significant damages being awarded against the company.
The plaintiff in this lawsuit, an immigrant, was initially hired with the employer “off the books” on the recommendation of his supervisor, and eventually was sponsored for his work permit by the employer. The Court found that the supervisor consistently and repeatedly abused the plaintiff verbally, including insults about his Albanian heritage. The Court further found that the supervisor had committed the tort of battery when he punched the plaintiff in the testicle which eventually led to having to have an injured testicle removed. These findings led to damages being awarded personally against the supervisor.
The Court also found, however, that despite the plaintiff advising the employer about the testicle incident and others, the employer did not investigate, discipline or otherwise address the supervisor’s mistreatment of the plaintiff. The Trial Justice determined:
“Having considered the evidence in context with the submissions of counsel, I am satisfied that the plaintiff was constructively dismissed by the employer. In other words, I am satisfied that viewed objectively a reasonable person in the plaintiff’s position would conclude that the employer did not intend to be bound by the employment contract by making the employee’s continued employment intolerable. I reach this conclusion for the following reasons:
a. the employer engaged in a series of acts that poisoned the workplace and undermined the employee/employer relationship. These acts include: failing to respond to the plaintiff’s repeated complaints about the supervisor’s conduct, which the employer knew involved a strike to the testicles as well as verbal abuse; failing to conduct any investigation into and/or discipline of the supervisor, failing to separate the plaintiff and the supervisor for anything more than a short “happenstance” period of time.
b. In addition, when the plaintiff fell from the ladder and was injured, the employer crafted a false narrative that sought to place blame on the plaintiff for the workplace accident. It also dissuaded him from pursuing a WSIB claim and used the supervisor as its intermediary to accomplish this end.
c. Once the plaintiff returned to work, he was eventually placed back with the supervisor. He was also made to perform duties outside his capabilities and had his WSIB claim prematurely terminated resulting in the loss of his wage top-up.”
The Court also determined that the failure of the employer to conduct an appropriate investigation into the supervisor’s harassing and abusive behaviour – behaviour which was known to the employer to have been allegedly related to the plaintiff’s Albanian heritage – constituted a breach of the Human Rights Code.
All told, the damages awarded by the Court for an employee employed less than four years included:
- $100,000 jointly and severally between the employer and supervisor for the tort of battery with general and aggravated damages;
- $10,000 jointly and severally between the employer and supervisor for the tort of assault;
- $25,000 for punitive damages against the supervisor personally;
- $50,000 for human rights damages against the employer;
- Four months’ wrongful dismissal damages, less mitigation against the employer;
- $75,000 for moral damages against the employer;
- $25,000 for punitive damages against the employer; and,
- $5,794 in unpaid wages against the employer.
As you can see, the Court certainly held the employer accountable for the way the plaintiff was treated at the hands of his supervisor. While no employer can expect to be perfect, it is no small matter to end up where the employer ended up in this litigation. If you have any questions about how or when to conduct a workplace investigation or to discipline an employee, contact the team at CCPartners.
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