'An employer must take reasonable steps to address an employee's complaints of harassment by anyone'
An Ontario court has awarded a worker eight months’ pay in lieu of notice – after four years of employment – plus $175,000 in general and aggravated damages for wrongful dismissal, workplace sexual harassment and assault, and her employer’s failure to provide a safe working environment.
The worker was hired in 2014 by Syra Group Holdings, a property management and ownership company, to be a superintendent at an apartment buildingsin Mississauga, Ont.
The worker was provided with a rent-free apartment and she reported directly to the property manager. She also had a “with cause” termination provision in her contract that listed 11 categories of conduct that could meet the standard of “wilful misconduct” allowing dismissal for cause without statutory minimum notice.
In 2016, the worker became the superintendent of an apartment building at 34 Dixington Avenue in the Etobicoke area of Toronto, shortly after the company purchased the building. The previous superintendent continued to live at the property, as did her two sons – one of whom had applied for the superintendent position.
In June 2016, one of the sons walked past the office while the worker was inside and brandished a hammer. Later, he shouted at her from his balcony that he would bash her head in with the hammer.
The same individual later kicked in the worker’s dog’s teeth in the building’s backyard. The worker called the property manager, who told her that if she was worried about safety, she should call the police. The worker subsequently called the police, who arrested and charged the man. He entered into a peace bond that prevented him from returning to 34 Dixington without Syra’s permission during the one-year peace bond.
No workplace violence, harassment policy
Syra was notified of the arrest and peace bond, and the chief financial officer advised all superintendents to call the police if the man was seen approaching any of its buildings. However, there was no violence or harassment training or accommodation discussions for the worker and Syra didn’t have a violence and harassment policy. Management simply told the worker to call the police if she felt unsafe.
In 2017, the other son of the former superintendent started coming by the building office, initially telling the worker about an ongoing sexual harassment charge against him and then making sexual comments about her. In March, he made explicit comments about sexually harassing the worker in front of two other tenants and touched her backside.
The worker reported the sexual harassment to the property manager, who again told her to contact the police if she felt unsafe. The worker did so and the second son was arrested and convicted of assault, receiving one year of probation, during which time he was banned from going to 34 Dixington. Syra was informed of the conviction and probation terms.
By late 2017, the worker had become fearful and depressed from the sexual harassment and assault by the two brothers. Before they were removed from the building, she often asked someone to sit with her in the office and accompany her to her own apartment.
In August 2018, the worker went on medical leave due to mental health issues exacerbated by the harassment, including self-harm and homicidal ideation. The leave was extended multiple times with doctor’s notes.
Mental disability and termination
On Sept. 13, Syra sent a written request for more detailed medical evidence around the worker’s symptoms and treatment. After no answer was received, the company sent another letter advising that if she didn’t respond, it would consider her to have abandoned her employment.
The worker’s treating psychiatrist responded on Oct. 23, saying that the worker was “struggling with mental health difficulties” and shouldn’t return to work at that time.
On Dec. 3, Syra terminated the worker’s employment, citing frustration of contract. A short time later, the company offered to reinstate the worker if she was cleared to return to work or could provide a return-to-work date with specific accommodations it could evaluate.
The worker, who was 43 at the time, declined the offer and filed a lawsuit claiming wrongful dismissal, a breach of the Ontario Human Rights Code, and additional damages.
In December 2019, the second son who had been convicted of assault returned to live at 34 Dixington. The worker only left her apartment for appointments and groceries and obtained a protection dog. In 2021, the first son returned to the building, and the worker continued to live in fear. When she attempted to look for a new job, she avoided interviews where she would be alone with a man.
Ambiguous termination provision unenforceable
The court found that the worker was terminated without cause, entitling her to reasonable notice. It found the termination provisions in her employment contract unenforceable, as the “with cause” provision contravened the Ontario Employment Standards Act, 2000 (ESA), with categories of misconduct that were ambiguous and could capture conduct that didn’t meet the “wilful misconduct” standard to deny statutory notice. This rendered the entire termination clause unenforceable, said the court.
Citing the worker’s age, four years of service, and the circumstances surrounding her termination, the court awarded eight months’ reasonable notice, noting the worker’s mental health challenges and recovery from ankle surgery after falling at the entrance to the building would have prevented her from mitigating her damages. In addition, it wasn’t reasonable to expect the worker to accept re-employment in the building where the perpetrators of the harassment and assault still lived, the court said.
The court also didn’t support Syra’s defence of frustration of contract. The worker’s medical leave was temporary and didn’t preclude her from returning to work in the foreseeable future, said the court, pointing out that the onus was on Syra to gather additional information about the worker’s medical status from the worker or her psychiatrist - which it failed to do or even request a specific return-to-work date.
“There was no evidence to suggest that the worker was permanently disabled such that she wouldn’t be returning ever in the foreseeable future to do her job,” says Paulette Haynes, principal of Haynes Law Firm in Toronto. “And, to the extent that the company needed better information to make certain decisions, there was nothing to stop them from doing that - they could have asked both the worker and the treating psychiatrist - before terminating her employment.”
The court also found that Syra breached its obligations under the code, Occupational Health and Safety Act, and common law by failing to protect the worker from workplace harassment and assault. Although it was aware of the harassment, Syra didn’t implement any violence or harassment policies or training, nor did it take any measures to make the worker’s working environment safer such as security measures or alternative work arrangements. In addition, the two brothers were allowed to return to the building after their probation periods were over, further contributing to the worker’s distress, said the court.
Reasonable steps
A key misstep by Syra was its lack of action when the worker reported the harassment and assault, according to Haynes.
“All the circumstances related to the harassment and the assault, including the impacts of that conduct - [the worker’s] mental health issues and the fact that she was under the continuing care of a psychiatrist - was in the knowledge base of Syra,” she says. “It’s a good reminder for employers about the obligations they have when faced with a worker who notifies them that they are being exposed to harassment and discrimination.”
Syra was ordered to pay the worker the equivalent of eight months’ reasonable notice with associated benefits, $125,000 in damages for the breach of her human rights, and $50,000 in aggravated damages for the mental distress caused by the termination while the worker was on medical leave and the way the company handled her complaints.
“The court expressly stated that an employer must take reasonable steps to address an employee's complaints of harassment by anyone,” she says. “The criteria for those reasonable steps include: an awareness of the discrimination and harassment policies, company mechanisms, and training; the employer’s post-complaint conduct such as promptness, investigation, and taking appropriate action; and resolution of the complaint, including communication and providing the worker with a healthy work environment.”
The amount of damages awarded also sends a strong message about how costly it can be when employers fail to meet their obligations to protect their workers from harassment, discrimination, and assault, according to Haynes.
“This is a fairly compelling judgment when you consider that the perpetrators of the misconduct weren’t employees, but they were part and parcel of the work environment,” she says. “This case strongly resonates with the obligations that the employers have to ensure the protection and safety of workers.”
Haynes also suggests that employers should do their best to refrain from dismissing employees while they're on medical leave without having valid or legal grounds, as that can bring the potential for moral damages.
