Aggravated Damages Awarded for Employer’s Failure to Investigate 2019-08-30T14:17:33+00:00

The plaintiff, Ms. Bassanese, a 73-year-old clerk, had worked for the defendant, German Canadian News, for approximately 19 years. She alleged that a male co-worker, Mr. Dhanani, had been abusive, harassing, and unprofessional towards her for a prolonged period of time.

In April 2018, Ms. Bassanese wrote to the president of the company, Mr. Perske, about “being constantly harassed by [Mr. Dhanani] yelling and screaming at me… telling me that I am an idiot and that I should be fired, etc, etc.” She noted that she had not previously filed a complaint but now wanted Mr. Perske to “step in and make sure this never happens again.”

Mr. Perske wrote back on the same day, stating, “Sorry to hear that. We’re a little short-staffed this week (2 illnesses, 1 sick child and a vacation) but I’ll run it by Anne Marie, she’s our HR person.”

For the following two months, Ms. Bassanese and Mr. Perske exchanged emails, but, no further steps were taken by the company. In fact, on May 15, 2018, the plaintiff wrote to the president again to complain about Mr. Dhanani’s conduct, stating:  “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.”

Unfortunately, on June 21, 2018, Ms. Bassanese was allegedly slapped three times across her face by Mr. Dhanani. She complained to the company’s Managing Director, and a police report was filed.

Ms. Bassanese was terminated that same day, without notice or compensation for the loss of her employment benefits.

On August 24, 2018, the plaintiff brought a claim against her former employer and Mr. Dhanani for wrongful dismissal, assault and battery, intentional infliction of mental suffering, aggravated damages, and punitive damages. While the claim against the co-worker was settled out of court, Justice Sossin awarded Ms. Bassanese 19 months of notice pay plus an additional 10% for the loss of employment benefits during the notice period and $15,000 for the slap, for which the employer was found vicariously liable.

Ms. Bassanese argued that a series of actions were taken in “bad faith” by the employer which cumulatively justified an aggravated damages award, including:

  1. the company’s failure to remit Ms. Bassanese’s statutory benefits under s.57 of the ESA;
  2. the company’s failure to launch an investigation on Ms. Bassanese’s complaint;
  3. the company’s termination of employment as a reprisal within the meaning of s.50 of the Occupational Health and Safety Act;
  4. the company’s failure to provide Ms. Bassanese with a letter of reference or assist in obtaining alternative employment; and
  5. the company’s failure to provide a subsidy for relocation/retraining counselling.

Accordingly, Sossin J. awarded Ms. Bassanese $50,000 in aggravated damages, citing that the employer had ignored her complaint and neglected to investigate the complaint or take steps to address the harasser’s inappropriate conduct. This neglect in the face of Ms. Bassanese’s heightened frustration and anxiety as the work environment became more toxic warranted aggravated damages.

The Takeaway

This decision reiterates the importance of taking harassment complaints seriously and conducting prompt and proper investigations where appropriate. Had the employer here conducted a proper investigation upon receipt of the initial complaint, the conduct may not have risen to the level of violence and the employer may have avoided such a significant aggravated damages award.

As a reminder, Ontario’s Occupational Health and Safety Act requires all employers with more than five employees to have a policy and a procedure for workplace violence and workplace harassment, including an investigation protocol. Maintaining, adhering to and enforcing these policies and procedures will help an employer defend against possible claims of aggravated damages.