Damages slashed for manager’s assault (Legal view)

Ontario Court of Appeal reduces $500,000 damage award but employer still liable for manager’s altercation with 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 just confirmed a poorly run investigation can render an employer vulnerable for considerable damages.

Marta Piresferreira worked at Bell for 10 years. She was supervised by Richard Ayotte, who was seen as critical, intimidating and aggressive. Ayotte would often yell and even swear at his staff and his management style had been discussed at his performance reviews. Ayotte was particularly tough on Piresferreira, thinking it would achieve results.

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 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 had prepared right after he pushed her. Ayotte told Bell’s human resources department 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. She 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 said she would be unable to attend a meeting because she was taking stress leave. Later 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 her 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 she return to work. Again, she refused.

Fed up with what it viewed as reasonable requests, Bell told Piresferreira she had effectively resigned. During this time, she was 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 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 hear her version of events and Bell had engaged in “damage control” rather than dealing with the complaint.

In Justice Aitken’s view, Bell seemed more interested in applying the PIP than investigating the complaint. Among other things, the court concluded Piresferreira had been constructively dismissed and Bell had acted in bad faith. Justice Aitken 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 of damages finding, in the employment context, it would be inappropriate to hold employers responsible for the negligent infliction of mental suffering. However, the Court of Appeal agreed Bell had acted in bad faith and Piresferreira had been constructively dismissed. The court awarded Piresferreira’s lost wages for one year — about $90,000 — and an additional $45,000 for mental distress based on the way she was dismissed.

Even though the Court of Appeal reduced the damages, this case illustrates the inclination of the courts to hold 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 allegations. This is especially important in Ontario, in light of the recent changes to that province’s Occupational Health and Safety Act (Bill 168), which requires employers to implement policies and procedures and can result in fines 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 Lublin is an employment lawyer and managing partner at Whitten & Lublin in Toronto. Ellen Low, an employment lawyer at the same firm, assisted with the writing of this article. They can be reached at www.canadaemploymentlawyer.com.

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