Fired employee failed to prove depression, harassment drove him to fight: Court

Employee didn't provide explanation about effects of harassment or medical evidence of depression that excused starting fight for which he was fired

An employee who was fired for fighting after being harassed, did not prove that his harassment or depression caused him to fight. Therefore, the Human Rights Tribunal of Ontario was wrong to find that his firing was discriminatory, the Ontario Divisional Court has ruled.

The employee, Paul Lombardi, had been diagnosed with hypothyroidism and depression. He had suffered verbal abuse from a co-worker who also sent text messages with homophobic slurs. Later, Lombardi got into a fist fight with another co-worker. The employer fired Lombardi, concluding that he had started the fight. Lombardi filed a discrimination application with the Human Rights Tribunal of Ontario. He claimed that the fight was at least in part a reaction to being harassed because of depression, perceived obesity and perceived homosexuality. The tribunal agreed. The employer challenged the decision in court.

The court decided that the Tribunal had made only a “bald statement that the fight was at least in part a reaction to the harassment.” Lombardi had the onus of proving a link between the harassment or discrimination and the fight, but he had failed to prove the link. The court stated,

“Given the evidence as to Mr. Lombardi’s responsibility for starting the fight, the lack of any explanation to the Employer about the impact of the harassment, the lack of any medical evidence relating to mental distress and given the seriousness of the misconduct, the conclusion that the dismissal was discriminatory was unreasonable, as the adjudicator failed to show why she reached that conclusion.”

The court sent the matter back to the Tribunal for a new hearing on whether the dismissal was discriminatory, as well as whether the $20,000 damage award for harassment was appropriate.

This is an interesting and nuanced decision showing that the fact that an employee is harassed does not automatically justify or explain a violent response by the employee. Instead, the employee must prove, through medical and/or other evidence, that his or her response resulted from the harassment.

For more information see:

• Walton Enterprises v. Lombardi, 2013 CarswellOnt 9732 (Ont. Div. Ct.).

Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or [email protected]. Adrian's discussion of this case also appears in the Dentons blog

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