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Mega Damages in Constructive Dismissal Case Involving Violence
Osmani v Universal Structural Restorations Ltd., 2022 ONSC 6979 is a new Ontario Superior Court decision where a plaintiff employee was assaulted and harassed at work and secured a wide variety of damages in court.
This case is important because it involves a manager and an employer both being held directly liable for all sorts of damages related to poor treatment and violence perpetrated against an employee.
The following are the pertinent facts found by the court:
- The plaintiff employee was 47 years old at the end of his employment, and he worked there for 14 months
- The employee started working for the employer initially without temporary foreign worker status
- The manager De-Almeida was harsh and demeaning towards the employee, calling him a “stupid/fucking Italian” or a “stupid/fucking Albanian”, and saying things like “I’ve got you by the balls” or “next flight, you are gone” as a reference to his precarious immigration status
- The manager would drop shovels or flick tape measures towards the employee’s testicles, and on one occasion he was angry at the employee and punched him hard in the testicles. The punch caused the employee to fall over. One of his testicles swelled and turned to mush, and he had to have it surgically removed
- The employee complained to management bout the punch
- The employee suffered a fall at work. The return to work process was stressful for him because his employer was pressuring him to come back before he was ready, assigned him duties well beyond the light duties he was supposed to be assigned, etc.
- The employee quit. The court found as a fact that his departure was as a result of the culmination of the abuse he was suffering there
The employee sued his supervisor personally and his former employer for many things, including assault, violations of the human rights code, unpaid wages, wrongful dismissal severance, aggravated damages and punitive damages
Analysis / Conclusion
The court found that the striking of his testicles amounted to the tort of battery, and awarded the plaintiff $100,000 in general damages and $25,000 in punitive damages as against the supervisor personally in this regard. The court also awarded an additional $10,000 against the supervisor personally for the tort of assault.
Interestingly, the court found that the employer was also liable for the assault and battery, on a vicarious basis, noting as follows:
 In this case, I am satisfied that an application of the Bazley criteria warrants a finding of vicarious liability on the USRL for the tortious battery and assaults by Mr. De-Almeida. Mr. De-Almeida was Mr. Osmani’s direct supervisor at USRL. The hierarchy at USRL placed Mr. Osmani in Mr. De-Almeida’s crew and he was subject to Mr. De-Almeida’s direction and control in relation to duties performed for USRL. The battery occurred at a meeting where work assignments were being discussed. During this meeting, Mr. Osmani was struck in the testicles when he offered to join another work crew for the benefit of USRL. He was struck by his immediate supervisor in front of other co-workers and supervisors. This is not simply an incident where the battery simply took place at a USRL workplace. USRL created a scenario where Mr. Osmani was in the direct control of Mr. De-Almeida who was tasked with supervising and directing work placements for his “crew” on behalf of USRL.
The court then went on to conclude that the employee was constructively dismissed, as the employer had engaged in a series of acts that poisoned the workplace and then made him perform duties that were beyond his capabilities when he came to return to work after his falling injury.
The court awarded the employee 4 months’ reasonable notice of termination (severance), plus $75,000 in aggravated damages for bad faith termination of employment and $25,000 in punitive damages.
The court also awarded $50,000 for various human rights breaches and unpaid wages of $5,794.
The facts in this case are fairly shocking, but the case should serve as a warning for employers with abusive and rough supervisors and managers. Employers are sometimes held accountable for the bad actions of their supervisors and managers, and this case is a striking example of how high the damages can be.
Bow River Law provides these regular legal blog articles for the purposes of legal education and research for the public and the legal profession. These articles should be considered general information and not legal advice. If you have a legal problem, you should speak to a lawyer directly.
Bow River Law is a team of knowledgeable, skilled and experienced lawyers handling employment law, human rights (discrimination) and labour law matters. Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.