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Failing to listen

​Malicious conduct by those in managerial roles exposes employers to liability, as well as the undesirable characteristics of the perpetrators
REUTERS/Heinz-Peter Bade

By Jeffrey R. Smith

It can still seem surprising when an employer’s treatment of employees goes beyond common sense and seems to ignore the current state of employment law and human rights. But if it still happens often enough, can we start calling it episodes of some garish reality show entitled What Were They Thinking?

Despite the piles of cases, settlements and legislation amendments every year that demonstrate the level of protection workers have to help even out the power imbalance in the employment relationship, some employers still have bullying issues with their management. And these issues can be bad enough to reach a point where it raises questions about such management’s ability to really manage the business, let alone their workforce.

One such employer was an Ontario company whose response to a long-time employee’s medical issue was head-scratching, to say the least. The employee, who had worked with the employer for 15 years, suddenly lost her hearing. Doctors couldn’t pinpoint the cause for sure, but suspected the culprit was a virus.

The employee’s supervisor began making life difficult for her, giving her instructions in a way that prevented the employee from reading her lips. The supervisor would then make fun of the employee when she got the instructions wrong.

The company’s owner was on medical leave, so the general manager was running things. He demanded the employee provide a medical note explaining the exact cause of her hearing loss — which of course wasn’t possible. When the employee provided her hearing test results, the general manager expressed doubt over her condition and the supervisor told her to quit and “go on disability.”

The employee asked for accommodation measures, such as a special telephone and visual fire alarm that she offered to pay for herself, and turning her desk around to see who was coming. She also asked permission for the Canadian Hearing Society to assess the office for accommodation needs, but the general manager refused all of these requests. He also refused to permit the employee to bring an assistance dog to work.

One day, the general manager terminated the employee’s employment, referring to a “stunt” at an employee Toastmasters Club meeting as the reason. The employee refused to sign a release, so he took back a cheque for three months’ pay and marched her out of the building in front of other staff. The employee was later diagnosed with adjustment disorder and suffered from anxiety and depression.

Unsurprisingly, the courts took the employer to task for its treatment of the employee. A trial court ordered the employer to pay the employee more than $140,000 in damages and costs for wrongful dismissal, discrimination, and intentional infliction of mental distress. But that wasn’t the end of it, as the employee appealed the amount of damages and an appeal court nearly doubled the award to more than $260,000 in damages and costs. See Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 CarswellOnt 10413 (Ont. C.A.).

In today’s climate of human rights awareness and protection of employee rights, it just doesn’t make sense for employers to act maliciously or even apathetically towards employees, especially if the conduct is motivated by a disability or other protected ground of discrimination. Employers and HR professionals need to be acutely aware of such circumstances — because such conduct by those in management not only opens up liability, it can demonstrate a lack of common sense, empathy and business sense that could ultimately harm the company’s business in other ways.

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Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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