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Failing to address harassment and investigate costs employer nearly $200,000
Ignoring and employee’s claim of workplace harassment has proven costly for an Ontario employer that was ordered to pay almost $200,000 in damages, including $50,000 in aggravated damages for failing to investigate and discipline the harasser.
Heidi Bassanese was a 73-year-old administrative clerk who worked for German Canadian News Company Limited for 19 years. On April 17, 2018, she complained to the president of the company that a fellow clerk was constantly harassing her by yelling and screaming at her, calling her an “idiot” and telling her that she should be fired. The president said he “was sorry to hear that” and that they were a little short-staffed that week, but he would “run it by” the company’s human resource person.
Bassanese followed up three weeks later on May 7 and 8 and was told by the president that he had raised it with HR and would take further steps.
When another week went by with no response, Bassanese wrote to the president again stating that she was at her “wit’s end and would like some sort of action to take place”. She noted: “I do not deserve to work in an environment where people are allowed to constantly yell and say inappropriate insults to me”.
On June 21, the co-worker slapped Bassanese across the face three times. Bassanese filed a police report and was fired the same day. She sued the employer two months later.
The court found in her favour and awarded Bassanese damages totalling $194,433.17, including:
- $15,000 for assault and battery
- $50,000 in aggravated damages
- 19 months’ pay in lieu of notice
- 10% of salary in lieu of benefits
The court held that aggravated damages (sometimes referred to as “moral damages”) were warranted. Bassanese’s frustration and anxiety heightened as the work environment became more toxic, while the employer ignored Bassanese’s complaint and neglected to investigate or take steps to address the co-worker’s inappropriate conduct. The judge noted that aggravated damages are designed to compensate for the “additional harm caused to the plantiff’s feelings by reprehensible or outrageous conduct on the part of the defendant.”
Employers have a duty to create and maintain a workplace free of discriminatory harassment under the Ontario Human Rights Code. The Occupational Health and Safety Act requires employers with five or more employees to have a policy and program to address workplace violence and harassment and imposes a duty on employers to conduct an appropriate investigation of all incidents and complaints of workplace harassment. Notably, neither of these obligations factored into the court’s decision. Rather, the court imposed a common law obligation on the employer to properly address and investigate workplace harassment and violence beyond any statutory requirement.
The decision makes clear that a failure to respond to or investigate an incident or complaint of workplace violence or harassment, or take appropriate action against the harasser can result in significant penalties against an employer.
The takeaways:
- Respond promptly to incidents or complaints of workplace harassment or violence.
- Act immediately to conduct a thorough and meaningful investigation.
- Consider interim measures that may need to be taken to protect the alleged target.
- Take appropriate corrective steps against harassers.
Reference: Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343 (CanLII)
