HR | Atlantic - Positive Change at Work

Workplace harassment damages awarded against managers personally as well as employer

Jan 24, 2013

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Human rights tribunal finds managers personally liable as well as the company for damages caused by workplace discrimination and harassment.

The Ontario Human Rights Tribunal found that a real estate agent had been subjected to a poisoned work environment and discriminated against on the basis of gender.  In May 2011, the Tribunal awarded the complainant $30,000 against the company for injury to dignity, feelings and self-respect. No award was made for lost wages, because the complainant had received six months’ severance pay and had failed to mitigate her damages when she turned down two reasonable job offers within that period.  Initially, that was the extent of the award.  However, the Ontario Human Rights Commission sought first a reconsideration and then a judicial review, arguing that the individual respondents named in the complaint should be held jointly and severally liable.  The Commission noted that the company was no longer operational and therefore unlikely to be able to pay the damages.

In June 2012, the Ontario Division Court unanimously ruled that a finding of corporate liability is not meant “to act as a shield against a finding of individual liability where the acts of the individual constitute a violation of the Code,” which has as its aim to provide an effective remedy to the complainant, and remitted the matter to the Tribunal for (another) reconsideration.

In September 2012, upon reconsideration, Ontario Human Rights Tribunal Vice-Chair Kathleen Martin held the two managers jointly and severally liable for $22,500 of the $30,000 award.  This was calculated on the basis of  $15,000 for the decision to terminate her employment, and $7,500 for  each of the two managers’ role in creating the poisoned work environment by failing to adequately address the harassment.

This decision serves as a reminder to managers that while their employer may be found vicariously liable for the misdeeds of their supervisors and managers, the individuals involved may also be held accountable and found liable.

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