Employer on the hook for lost wages, damages in ‘vile’ case

Jail guard awarded nearly $350K for harassment, discrimination
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 09/09/2013

A jail guard who suffered through “vile” harassment and discrimination has been awarded $45,000 by the Grievance Settlement Board for breaches of Ontario’s Human Rights Code and a collective agreement.

It’s the largest amount the board — which oversees Crown employers and their unions in Ontario — has ever awarded but it’s necessary for the extensive damage to the worker’s dignitary interest, according to vice-chair Deborah Leighton.

“There is no case before me where the complainant has suffered such extensive harm.”

The correctional officer, who is gay, was also awarded $35,000 and $18,000 in compensatory damages for the same breaches in two specific time periods, for a total of $98,000, along with vacation credits, overtime and other premium pay — on top of a 2011 award of $244,000 for lost wages.

The decision is important, according to Donald Eady, a partner at Paliare Roland in Toronto who represented the union.

“It recognizes, through a significant damages awards, that employers are not just liable for lost wages when harassment and discrimination makes an employee sick,” he said. “(Employers) need to treat this type of situation seriously and do everything short of undue hardship to fix the situation. If they don’t, they can be liable for lost wages and significant damages.”

The decision deals with challenging doctrinal disputes about whether and how damages are awarded for issues such as mental distress, a poisoned work environment, harassment and discrimination, said Andrew Pinto, a partner at Pinto Wray James in Toronto.

“It also seeks to unite some of the principles that come from human rights law and labour law and employment law. Sometimes those feel like three different streams, but maybe this decision is trying to make it just one river.”

‘Poisoned work environment’

Robert Ranger worked for the Ontario Ministry of Community Safety and Correctional Services. In 2002, he filed a grievance alleging his employer breached the collective agreement by condoning discrimination by fellow employees and managers, which created a poisoned work environment. He also alleged the harassment and discrimination, based on his sexual orientation, made him ill and, in 2004, he said the centre failed to accommodate him when he returned to work.

No one should have to endure what Ranger endured, said Leighton.

“The harassment and discrimination that created a poisoned workplace at (the Ottawa Carleton Detention Centre) was vile. The chief culprit and his entourage taunted and humiliated Mr. Ranger repeatedly and the employer did almost nothing to address the homophobic atmosphere in the jail. The employer is liable for this failure.”

The harassment and discrimination made Ranger very ill and, at times, suicidal, she said. Ranger still suffers from depression and anxiety attacks and remains on medication.

Leighton also mentioned the correctional institution’s “considerable delay” in investigating Ranger’s complaint about harassment and discrimination.

The ministry failed to investigate for 18 months, said Eady.

“The employer knew that there was a poisoned work environment and did nothing to change the culture. The employer then failed to accommodate (Ranger) over three different periods when he was medically able to return to work.”

There was almost no evidence to justify the delay and it was a breach of the employer’s duty, said Ronald Minken, head of Minken Employment Lawyers in Markham, Ont.

“(The) impact of the delay in… investigating the complaint affected (Ranger) adversely and made (him) sicker.”

Investigations can be time-consuming — depending on how many factors are involved, how many allegations there are and how accessible the parties are to interview — so you want to start them as soon as possible, said Heather MacKenzie, president of the Integrity Group in Vancouver.

“To wait 18 months and then try to cobble together a case where you’re looking back to recollections years before, then it calls into question the authenticity of evidence or the credibility of the evidence and that sort of thing. Why did they wait?”

When it came to the duty to accommodate, Ranger also deserved significant compensatory damages, said Leighton.

“The employer did not do enough in a consistent and concerted effort to find Mr. Ranger a suitable position,” she said, adding there were long periods where nothing was done to find him a position and no attempts were made to modify two possible positions.

“The evidence of the Manulife consultant was that she had never seen an employer so reluctant to return an employee to work,” said Leighton. “The employer also tied the accommodation process to the litigation of the grievances.”

Some employers will say the relationship has broken down to the extent they don’t want to look at duty to accommodate obligations because they feel that is somehow buying into the employee’s argument, said Pinto.

“But what this decision stands for is that employers have to re-double their commitment to look for the duty to accommodate in good faith, even while there is a dispute going on in the workplace.”

The board awarded such a large amount because the employer failed at every step, said Eady.

“It allowed the harassment and discrimination and poisoned work environment to persist; it failed to promptly investigate (Ranger’s) complaint made under the employer’s harassment policy; and it failed to accommodate (him) when he was able to return from work.”

There was also uncontroverted medical evidence Ranger suffered anxiety and deep depression, at times being suicidal, said Minken. He felt victimized and lost self-respect, he transformed into a bitter, distrustful person and he lost the work he wanted to do as a correctional officer.

“The combination of the harassment, discrimination and not being accommodated for so many years left (Ranger) emotionally crippled, distrustful of everyone and completely crushed,” he said. “(The) breach was significant and the harm extensive.”

An interesting aspect of the case was the fact the main antagonist was another union member, said Pinto.

“The employer suggested that its obligations towards (Ranger) in terms of damages it owed ought to be reduced because the bully or harasser was another union member — and the Grievance Settlement Board did not buy that argument,” he said. “The employer always remains responsible to maintain an atmosphere of non-discrimination and a harassment-free workplace, even though the union shares in that responsibility.”

While the primary culprits were union members, this did not absolve the employer’s responsibility in knowingly doing nothing to address the poisoned workplace Ranger had to tolerate, said Minken.

But many cases involve union members in a conflict, said MacKenzie.

“Imagine what it must have been like for Mr. Ranger, where you’re paying union dues expecting that the union’s going to protect you in the event that you’re subject to inappropriate behaviour in the workplace,” she said. “Why would I come forward with a complaint in this organization when I know the legend of Robert Ranger? You come forward, your life’s a living hell for 10 years.”

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