A judgment handed down earlier this year by the Ontario Superior Court of Justice has created angst for many employers in the province. In the Piresferreira v. Ayotte and Bell Mobility Inc. decision, the court held that the employer was jointly and severally liable with an employee for more than $500,000.00 in damages and a further $225,000.00 in costs as a result of harassment and an assault by a supervisor on a female sales representative, which occurred at the employer’s Ottawa office. The conduct of the company in the lead up to incident and in the aftermath played a large role in the severity of the judgment. The case is noteworthy for all employers in the province because it provides a blue print of how not to handle these issues in the workplace.  

Employers can take comfort in the fact this company’s vicarious liability did not result from one or two isolated mistakes along the way. The court’s crackdown was the result of a continuous pattern of behavior by the company and its Human Resources personnel, who showed a total lack of genuine regard for the severity of the workplace harassment issue. This article will highlight a few of the useful lessons which can be taken from the case.

Prevention

The best method for dealing with harassment in the workplace is prevention:  employers should strive to ensure it doesn’t happen in the first place. In particular, employers should be conscious of the work environment that is being fostered under their watch. In this case, the supervisor in question had a history of using aggressive and forceful tactics with his sales team. This was common knowledge throughout the regional Ottawa office he managed, and it was also well known to his supervisors at head office in Montreal. The court was critical of the company for allowing an environment of intimidation to develop. The court indicates that an employer owes its employees a duty of care to ensure that the workplace is a safe, harassment-free environment, without intimidation or verbal abuse.

Employers are well advised to be on the lookout for these types of tactics emerging within their company. They can help accomplish this endeavour by clearly mandating, in a company code of conduct or company guidelines or policies, what types of managerial conduct are acceptable and what types of behavior will not be tolerated. Employers must also follow through on these policies and ensure that they are being observed and respected by all levels of staff within the company. This proactive stance will give the employer a better leg to stand on if any issue of harassment is ever to arise. Such policies or guidelines will be useful evidence of the company’s efforts to address and prevent workplace harassment from being permitted to grow and will help demonstrate that an employee accused of harassment was acting outside of a clearly defined scope of acceptable behaviour.

A second key issue addressed in the decision was that the supervisor in question was given a huge amount of autonomy in running the regional office in Ottawa. His supervisor worked out of Montreal and had no direct relationship with the other employees in Ottawa. He was given the ability to manage the Ottawa office in the manner he deemed appropriate with very little actual direction from head office. The court held that company was vicariously liable for its supervisor’s actions. Normally, as the court pointed out, a company will be held vicariously liable for unauthorized acts only where they are so closely connected with authorized acts that they may be regarded as a method (even if improper) of performing the authorized act. Here there was no question that the supervisor’s conduct was outside the scope of his employment, yet the company was still held to be vicariously liable primarily because of the level of responsibility entrusted upon him in his supervisory role over the Plaintiff. Employers should be aware that by giving such a high degree of autonomy to any given employee, they are opening themselves up for a greater possibility of being held liable for that employee’s wrongdoings.

Responding to Complaints

The unfortunate reality is that even when employers are being prudent, these types of events can still occur. It is important for employers to realize that even after a harassment issue has arisen, they can still significantly mitigate their liability. The court found the company’s response to the incident to be totally inadequate, which significantly affected the damage award. The company did not issue an apology at any point in time before litigation commenced, the accommodation proposals put forth by the company for the Plaintiff to return to work were completely unreasonable, and the disciplinary action taken with respect to the supervisor was not at all proportional to his conduct.

It is crucial for an employer and its Human Resources personnel to respond genuinely to all complaints. This can be difficult because supervisors and managers whom the complaint is against often have a close working relationship with Human Resources personnel. It is imperative for whoever is receiving the complaint to remain impartial and to make a sincere effort to resolve the grievance. Employers should have a reporting arrangement that ensures employees with complaints can be comfortable lodging them, without fear of reprimand and with confidence that it will be dealt with fairly. In this case, the company failed entirely to accomplish any of these objectives to the point that the court found it would no longer have been possible for the Plaintiff to continue its employment with the company. 

This decision represented a unique fact scenario; and showed an extremely poor response to what was obviously a very serious incident. Employers don’t need to worry that awards of this magnitude will become common place, but they should keep these issues top of mind. Employers can do a lot to protect themselves by simply remaining alert to the nature of their work environment and by using their best efforts to quickly and properly resolve any issues that do arise.

Hugh Hammond is an Articling Student with BrazeauSeller.LLP.  Hugh can be reached at hhammond@brazeauseller.com or 613-237-4000 ext. 249.  If you have any further questions about this article, please contact James Katz at 613-237-4000 ext. 267 or jkatz@brazeauseller.com.