By Howard Levitt and Puneet Tiwari  

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Howard Levitt: Man who lost testicle from getting hit by supervisor awarded more than $295,000 Back to video

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You have recruited a highly regarded executive and become great friends. You believe your team is stronger because of her involvement. She does wonderful work. However, her behaviour with co-workers is problematic. Do you overlook and ignore the behaviour? Do you discipline or fire?

The wrong choice could be very expensive.

In the recent Ontario Superior Court decision of Osmani vs. Universal Structural Restorations Ltd., the employer paid a price which was staggering.

Rezart Osmani, a 48-year-old foreign worker from Albania, worked for USRL for only 14 months. But in that time, he was victim to some of the worst treatment we have seen, as detailed in the judge’s ruling in the case. His supervisor constantly used racial slurs toward him. Osmani was threatened with deportation if he questioned his assigned tasks. When he was hurt on the job site, his supervisor interfered with his Workplace Safety and Insurance Board (WSIB) claim, demanding that he not file a claim in order to save the employer money. Osmani felt obliged.

Worst of all, the supervisor hit Osmani in the testicles in front of all his co-workers with all of his might, doing so much damage that he later had to have the testicle removed.

Adding insult to this actual injury, when Osmani complained that he was having marital problems as a result, the supervisor advised: “I can help, bring by your wife.”

At that point, Osmani was done with USRL and claimed constructive dismissal. He sued both USRL for constructive dismissal and the supervisor for punitive damages, battery, and assault, among other things.

Osmani claimed that USRL was vicariously liable for the supervisor’s actions. The judge agreed and ruled in Osmani’s favour, awarding him an unprecedented amount.

USRL was liable for: $4,364 for four months’ severance for wrongful dismissal; $100,000 for battery; $25,000 for punitive damages against the supervisor personally; $10,000 for assault; $50,000 for human rights damages; $5,794 in unpaid wages; $75,000 for moral damages; and $25,000 in punitive damages.

The supervisor was responsible for only $25,000 of this grand total of $295,158, but if the supervisor proves unable to pay that amount, it can be collected from the employer as well.

Could the employer have avoided this? At the first serious evidence of this troubling behaviour, it should have fired the supervisor immediately. It can be difficult for smaller employers to terminate employees as often relationships form between colleagues. But was keeping the supervisor worth $295,158?

What about the permanent mental and physical damage that Osmani experienced? When employers choose to keep bad actors in the workplace, they end up paying, one way or another.

Takeaways for employers

1. Investigate

In health and safety legislation across Canada, employers have a duty to maintain not only a safe working environment for their employees, but to investigate any complaints of harassment. In the Osmani case, Osmani’s complaints were met with comments such as “send him back,” implying he would be deported. No investigation was completed. The employer chose to support the supervisor.

A thorough investigation will provide an objective assessment of the situation, allowing the employer to act on that information and possibly terminate the bad actor with cause. Not to mention, the employer has a statutory duty to investigate.

This investigation can generally be done, and certainly less expensively, by an objective trained internal manager not by an outside investigator looking to get future assignments by pleasing the employer, dragging out the investigation while the workplace is paralyzed and charging often six figure amounts. .

2. Have a policy

All employees should receive workplace policies when they start working. This includes health and safety, codes of ethics and conduct, and even IT policies. Ensuring these policies are in place tells employees that you take their well-being seriously. A separate policy for managers as to how they treat employees is useful. New managers should be trained on how to manage direct reports consistent with that employer’s policies and culture.

3. Perform background checks

Often, a simple background check can reveal details about an employee that would have otherwise remain hidden. If USRL knew the supervisor had a history of this type of behaviour, he may not have gotten the job.

4. Terminate for cause when justified

Employers are often hesitant to terminate employees for just cause. It is the ultimate punishment that has an extremely high threshold. In the Osmani case, the employer would have had cause to summarily terminate the supervisor’s employment. It chose not to.

Terminating an employee without cause when an employer actually has just cause precludes the employer from bringing up the employee’s bad behaviour in the event of a lawsuit, and opens the employer to further liability in a wrongful dismissal suit if the employer’s offer is not accepted. Also, and less considered, condoning serious misconduct sends an unfortunate message to other employees and third parties. Always check with an employment lawyer to determine whether you have cause to terminate an employee or not. Most Canadian employers have become overly hesitant to take action — do not make that mistake.

Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Puneet Tiwari is with Levitt Sheikh.