now be aware, there is an obligation to conduct investigations into allegations
of workplace harassment complaints. Subsection 32.07(1)(a) of the Ontario Occupational Health and Safety Act,
stipulates:
employer shall ensure that an investigation is conducted into incidents and
complaints of workplace harassment that is appropriate in the circumstances.
This obligation is not to
be taken lightly, as a recent decision from the Ontario Superior Court of
Justice makes clear.
2018 ONSC 121 (CanLII), the employer did not appear to make any
sort of investigation of an employee’s claim of harassment. The employee
reported the harassing behaviour to her supervisor. Once, when reporting
harassing behaviour, she advised her supervisor that she felt she should go home,
to which the supervisor simply said: “goodbye.”
were not being addressed, the employee escalated her complaint to the owner and
asked him for a lay-off. The owner said he could not lay her off but asked
whether it would make a difference if she took a day and then returned to the
workplace without the harassing employee being present. The plaintiff said it
would improve the situation for her.
received a termination letter. The termination letter indicated the plaintiff
was being terminated for cause as a result of her conduct, alleging that she
was given to ranting at her fellow colleagues. The plaintiff was also advised
that since she was being terminated for cause, she was not entitled to severance.
already suffering from depression, fell into a deeper depression and was
subsequently diagnosed with acute depression and was prescribed stronger
medications. She also lost roughly 30 pounds, and started counseling sessions.
The employee (i.e. the plaintiff)
sought damages for breaches of the Human
Rights Code, aggravated damages and punitive damages. The employee’s claim
for wrongful dismissal had already been decided in a separate decision.[1]
The court found no
discrimination under the Human Right Code,
but it did find this was an appropriate case to award aggravated and punitive
damages.
for Aggravated Damages
There are three elements
to a claim for the aggravated tort of intentional infliction of mental
suffering: (i) flagrant or outrageous
conduct; (ii) calculated to produce harm; and (iii)
resulting in a visible and provable illness.
With respect to this
claim, the court found there were damages for intentional infliction of mental
suffering and emotional distress. The court was not satisfied that the conduct
complained of rose to the level of intentional infliction of mental suffering,
but it did find that the manner of her termination caused an aggravation of the
plaintiff’s pre-existing depression.
The court was satisfied
that the plaintiff was harassed in the workplace. The court was also found
that, rather than investigate the complaint(s), the employer terminated the
plaintiff. Not only that, the plaintiff was informed that she was fired by a
termination letter being placed in her backdoor on December 22, 2017 (i.e. the
holiday season). The court noted that this manner of termination was not only
“cold and brusque”, but “cowardly”.[2]
The court noted this was an appropriate case for aggravated or “moral”
damages, and awarded the plaintiff the sum of $20,000 for aggravated
damages[3].
Damages
Justice Newton noted that
compensatory and aggravated damages were each insufficient to recompense the
plaintiff in this situation and awarded a further $10,000 in punitive damages.
The court also awarded
$5,500 for the plaintiff’s costs.
Away
claim and employers must do the right thing by their employees and take all
such claims seriously. A proper workplace investigation is in order when an
employee comes to their superiors with allegations of workplace harassment. Not
only do employers have a statutory obligation under the OHSA to conduct a
workplace investigation, they also have a moral obligation to treat employees
fairly. As this case demonstrates, failure to do so will may cost the employer.