$500,000 award reduced but employer still liable for manager’s push of employee
In response to a workplace complaint, many employers blithely “investigate,” assuming their legal obligations will be met. However, the Ontario Court of Appeal has confirmed that a poorly run investigation can render an employer vulnerable for considerable damages.
Marta Piresferreira worked for Bell for 10 years. She was supervised by Richard Ayotte, who was seen as critical, intimidating and aggressive. Ayotte would often yell and swear at his staff and his management style had been the subject of performance reviews. Ayotte was particularly tough on Piresferreira, thinking it would achieve results.
Physical altercation with supervisor
In May 2005, the situation between Piresferreira and Ayotte erupted. When Piresferreira allegedly failed to book a meeting, Ayotte responded by yelling and swearing at her, refusing to entertain evidence of her efforts, and eventually pushing her backwards with enough force that she had to catch herself on a filing cabinet. Stunned, Piresferreira followed Ayotte into his office, insisting what he had done was wrong. Ayotte barked at her to “get the hell out” and threatened her with probation.
Piresferreira returned to work a few days later expecting an apology. Instead, she was immediately presented with a performance improvement plan (PIP) Ayotte prepared after he pushed her. Ayotte told Bell’s HR department that he needed the PIP quickly but did not mention the altercation. As part of the PIP, Piresferreira was required to report to Ayotte daily or face discipline up to and including termination. Piresferreira refused to sign the PIP, went home, and complained to Bell.
Instead of investigating the merits of her complaint, Bell told Piresferreira she needed to attend a meeting to talk about her PIP. She responded she would be unable to attend because she was taking stress leave. The same day, Bell sent her a letter indicating its investigation was complete and the case was closed. In reality, Bell’s investigation involved speaking to Ayotte, who admitted to pushing her but insisted he was provoked. At the conclusion of the investigation, Bell asked Ayotte to formally apologize to Piresferreira in a meeting — which it considered her to have refused to attend — required him to attend two training courses and placed a disciplinary letter in his file.
During the months that followed, Bell asked Piresferreira to return to work a number of times. Each time she refused. Initially, Bell offered to sit down with Ayotte and Piresferreira to try to work things out, or to reorganize so Piresferreira would not report to him. Later, Bell told Piresferreira Ayotte had been relocated and she could return to work without having to deal with him. However, a colleague told her Ayotte was still in the office. Finally, Bell advised Piresferreira Ayotte was retiring and requested that she return to work. Again, she refused. Fed up with what it viewed as reasonable requests, Bell told Piresferreira she had effectively resigned. Piresferreira was also diagnosed with post-traumatic stress disorder, major depressive disorder and anxiety.
At trial, the Ontario Superior Court of Justice held Bell responsible not only for Ayotte’s actions, but also for failing to treat Piresferreira with civility and respect. Justice Catherine Aitken based her reasons on the fact no one from Bell contacted Piresferreira to get her version of events and she found Bell had engaged in “damage control” rather than dealing with the complaint. In Aitken’s view, Bell seemed more interested in applying the PIP than investigating the complaint. Aitken concluded Piresferreira had been constructively dismissed and Bell had acted in bad faith. She awarded Piresferreira more than $500,000 in damages for lost future earnings, mostly due to the tort of negligent infliction of mental suffering.
Recently, the Ontario Court of Appeal reduced the award, finding that, in the employment context, it would be inappropriate to hold employers responsible for the negligent infliction of mental suffering. However, it agreed Bell had acted in bad faith and Piresferreira had been constructively dismissed. The court awarded Piresferreira’s lost wages for a year — about $90,000 — and an additional $45,000 for mental distress based on the way she was dismissed.
What can employers take from this case?
Even though the Court of Appeal reduced the damages, this case illustrates the inclination of the courts to render employers civilly responsible for the acts of supervisors and managers towards their staff.
To avoid liability, employers need to put comprehensive policies into place prohibiting abusive, harassing or intimidating behaviour. These policies should be accompanied by a clear process to complain, investigate and address these types of allegations. This is especially important in Ontario in light of the recent changes to that province’s Occupational Health and Safety Act, which requires employers to implement such policies and procedures and can result in fines for non-compliance of up to $500,000.
Further, all complaints and other instances of harassment, assault or intimidation should be promptly, and thoroughly, investigated. To avoid allegations of bias, or internal influence, employers should engage an experienced workplace investigator or employment lawyer to ensure the investigation and subsequent recommendations are impartial.
Daniel A. Lublin and Ellen A.S. Low are employment lawyers with Whitten & Lublin LLP, a team of legal experts who provide practical advice and advocacy for workplace issues. They can be reached at www.canadaemploymentlawyer.com.
