When sales push comes to shove

By Jeffrey R. Smith ([email protected])

Employers have to treat workers with respect. That’s a simple fact of the employment relationship. Companies that don’t could find themselves on the losing end of an employment law case, having to fork over significant amounts of money to compensate workers for things like stress and, particularly in human rights cases, injury to dignity caused by their conduct.

Bad-faith damages, especially in the wake of last summer’s redefinition by the Supreme Court of Canada in Honda Canada v. Keays, are related to hardship and damages suffered by the employee because of the employer’s conduct in the manner of dismissal.

Regardless of whether an employer’s hurtful conduct happens during the course of employment, in the manner of dismissal or afterwards, it’s interesting to see how courts and arbitrators interpret the actions of employers and the effects they have on employees.

I recently came upon an interesting case from late 2008 dealing with the harassment and physical assault of a Bell Mobility employee. Admittedly, the circumstances make the case somewhat unique and the decision should be considered in that light, but there are lessons to be learned from the ruling.

The employee, a 60-year-old woman, was often yelled at and belittled by her manager. One day, the manager was so fed up with her he pushed her lightly into a filing cabinet to get her out of his way. The employee was deeply affected by the incident, particularly after the manager didn’t apologize and implemented a performance improvement plan for her.

It’s notable the Ontario Superior Court of Justice awarded the employee five years’ pay — more than $500,000 — after she couldn’t go back to work because of post-traumatic stress disorder and depression stemming from the assault, but what is most interesting is the court didn’t just award damages to the employee.

The employee’s stress disorder had made her withdrawn and unable to do as many chores or activities around the house. She also didn’t feel up to socializing as much with her friends and this had a signficant effect on her romantic relationship and her partner’s life as well. So the court said the employee’s partner deserved some cash too, and ordered Bell Mobility and the manager to pay the partner a total of $15,000 for loss of companionship.

Though the circumstances of the case involving the physical assault are unique, Stuart Rudner, a partner with Miller Thomson in Toronto, says it’s possible the court’s reasoning could be used in other cases dealing with severe psychological harassment of employees. Bell Mobility’s liability for its manager’s actions also falls in line with recent proposed changes to Ontario’s Occupational Health and Safety Act, which creates vicarious liability for employers in specific situations of pyschological harassment and bullying, he says.

The balance between work and home life is an important issue for employers and employees. Could a decision such as this open the door to similar claims, or is it an aberration? If an employee suffers extreme psychological harassment at work that affects her home and social life, could similar awards be doled out to her close companions?

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