Help – my boss is using me for target practice

When the demands of a superior or co-worker become oppressive, and an employee begins to feel more like a bull's-eye for target practice, that employee might have a claim for damages

The workplace is a magnet for stress. Whether it’s the nature of the position held, the instantaneous responses imposed by technology, the demands of a superior or co-worker — or a combination of all three — stress is prevalent in many work environments. But when the demands of a superior or co-worker become oppressive, and the employee begins to feel more like a bull’s-eye for target practice, that employee might have a claim for damages.

When an employee has been harassed by a superior or co-worker to the point where it causes her physical harm, she may sue the employer for the tort of intentional infliction of mental suffering. This remedy is gaining increasing recognition by the courts for employees who have been the object of malicious behaviour on the part of a superior or colleague.

This tort originated out of Wilkinson v. Downtown. In this case, the defendant played a practical joke on Wilkinson when he said her husband had been in an accident and had broken both of his legs. As a direct consequence of the shock of hearing the distressing news, Wilkinson became seriously ill. In establishing this new tort, the court said the act had to be wilfully calculated to cause physical harm. Wilkinson was not a case pertaining to employment law, but the principle has been applied in employment situations.

In Boothman v. R., Boothman had been severely harassed and intimidated over a seven-month period by a superior who had knowledge of her fragile mental state. She suffered a mental breakdown which continued to the time of trial seven years later.

Boothman worked as a clerk with the federal government in an office with just her supervisor. Despite knowing she was emotionally vulnerable, the supervisor used a variety of tactics to intimidate and dominate her. One of his tactics involved reorganizing her desk, another was uttering threats of physical violence while a hammer lay on his desk.

The court found the supervisor’s conduct amounted to an intentional tort and found the employer vicariously liable. Boothman was awarded $5,000 for pain and suffering, incidental to the intentional infliction of nervous shock. She was also awarded $5,000 for pain and suffering due to the supervisor’s assaults on her and a further $10,000 for exemplary damages to act as a form of deterrence.

In Boothman, the employee had been harassed to the point of becoming physically ill.

In the recent case of Prinzo v. Baycrest Centre for Geriatric Care, the Ontario Court of Appeal addressed the issue of an employee who had been harassed while on disability leave.

Prinzo worked for Baycrest for more than 17 years as the manager of its beauty shop. Her responsibilities included accounting, financing and scheduling of appointments as well as providing hairstyling services to clients. At the time she was terminated, Prinzo was 49 and earned $30,500 per year.

In 1996, she came under the supervision of a new manager who did not consider her a model employee although she had previously been viewed as such. In late 1997, Prinzo fell and injured herself in Baycrest’s parking lot. She suffered musculoskeletal injuries and was unable to use her right arm. She did not attend work the next day, but came in the following week and was referred to physiotherapy. She continued to work on light duties, although her pain increased. On Nov. 27, 1997, she received a “letter of layoff” indicating her position was being eliminated due to financial constraints. The letter stated, “the effective date for elimination of the position will be determined in our discussions over the next few weeks.” The next day she went on disability and remained off the job until February. The doctors confirmed Prinzo was medically unfit for any form of work during this period of time.

Shortly after she started her short-term leave, an occupational health nurse began calling her to inquire about her ability to return to work. Prinzo’s supervisor also called to urge her to return to perform modified work. Despite the fact both knew she was not able to work, they made repeated telephone calls to her home in an attempt to pressure her to return.

Just before Christmas, Prinzo received a letter from Baycrest which falsely implied she was medically fit to return to work. It said her family doctor had cleared her for a return to modified duties, and warned the company would regard her failure to return as a work refusal. Prinzo’s doctor never authorized this.

On Jan. 15, Prinzo’s lawyer wrote a letter outlining the stress and anxiety being caused by Baycrest and requested all communication be directed through him. But the calls continued.

On Feb. 9, 1998, she returned to work and Baycrest immediately arranged for a meeting. She asked a friend to come to this meeting, but the friend was not permitted to remain in the meeting. The topic of her layoff or termination arose during this meeting and the employer suggested Prinzo’s conduct caused harm to the residents of Baycrest. At trial, Baycrest took the position it was entitled to communicate with its employee as part of its duty to identify suitable employment for her. But neither the trial judge nor the appeal court agreed.

In its analysis, the Ontario Court of Appeal outlined that to find damages for the tort of intentional infliction of mental suffering the conduct must be a wrong independent of the action for wrongful dismissal. It held three elements must be present to sustain a claim for the tort of intentional infliction of mental suffering:

•flagrant or outrageous conduct;

•the conduct must be calculated to produce harm; and

•the conduct must result in a visible and proven illness.

The trial judge made express findings for each of the three required elements, all of which the appeal court upheld.

First, the trial judge held the conduct was flagrant and outrageous. In the trial judge’s opinion, “…acts of harassment by the employees of the defendant (Baycrest) were so extreme and insensitive that they constituted a reckless and wanton disregard for the health of the plaintiff (Prinzo).”

Second, the trial judge found Baycrest’s employees, “were well aware of the physical and emotional health of the plaintiff and would realize the detrimental effect their harassment would have on the plaintiff and yet they persisted (in) such harassment with almost sadistic resolve.” Therefore, Baycrest’s conduct was calculated to produce harm.

Third, the trial judge was satisfied the conduct of Baycrest’s employees caused Prinzo emotional upset, increased her blood pressure, resulted in significant weight gain and increased symptoms of diabetes.

As a result of having found all three of the elements of the tort of intentional infliction of mental suffering were present, the Ontario Court of Appeal found a separate actionable wrong existed. The award of $15,000 for the tort of intentional infliction of mental suffering was upheld.

Claims of harassment by co-workers and superiors are becoming increasingly common. It is critical for employers to protect themselves in case such a claim is raised. The best means of protection is a clearly defined policy to be followed in harassment cases. A good harassment policy should contain the following:

Definition of harassment: A clear and concise definition of harassment as well as some examples.

A mission statement: A statement that the company does not condone harassment of any kind.

The procedure to be followed: If an employee believes he is being harassed, the employee needs to know to whom the complaint should be submitted and how the complaint is to be made.

A confidentiality assurance: It is important the employee knows the process is confidential, and will be maintained as much as possible. There should also be a statement the employee will receive protection from possible reprisal.

The investigation process: Outline the procedure to be followed during the investigation of the complaint.

The remedies: Outline what the employee can expect from the outcome of the process if the complaint is meritorious.

The appeal procedure: If the employee or the harasser disagrees with the initial decision, either of the two individuals must be able to have the complaint heard again.

For more information see:

Wilkinson v. Downtown [1897], 2 Q.B. 57, al E.R. Rep. 267.

Boothman v. R. [1993], 49 C.C.E.L. 109 (F.C. T.D.).

Prinzo v. Baycrest Centre for Geriatric Care (2002), 215 D.L.R. (4) 31 (Ont. C.A.).

Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected]. Her column appears regularly in Canadian HR Reporter’s Guide series. Look for the Guide to Recruitment & Staffing in the May 19 issue.

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