In a recent 2019 decision, Bassanese v. German Canadian News Company Limited et al., the Court has concluded that an employer can be held vicariously liable where one employee assaults another employee.
This case involved two employees who did not like each other. Dhanani was employed as an accounts receivable clerk. Bassanese worked in an administrative position. The two employees did not get along. Bassanese, who was 73 years of age and had worked for the company for 19 years, alleged that Dhanani was abusive, unprofessional and harassing towards her over a prolonged period of time. She repeatedly complained to the President about incidents of harassment, yelling, screaming and derogatory insults by Dhanani directed at her. In addition to the harassment, and abuse, Dhanani slapped Bassanese across the face three times. Bassanese complained again to the President and she filed a police report, her employment was terminated the same day.
Bassanese sued the company for wrongful dismissal and sought, in part, $100,000 in damages for assault and battery, $100,000 for intentional infliction of mental suffering and other damages against the company on the basis that it was vicariously liable for the acts of Dhanani. She also made claims against Dhanani personally, but those claims were settled.
The Court considered whether the employer should be vicariously liable for failing to provide an employee with a safe work environment. In Piresferreira v Ayotte, the Court determined that a corporation was vicariously liable for assault and battery after a supervisor shoved an employee, in the course of discharging their supervisory role. The employee was a supervisor of the employee who had been physically assaulted. In making the determination that the employer was vicariously liable, the judge determined that the interactions relating to the assault and battery were integral to the supervisory role that the abuser held because of his employment. This same analysis was not done in the case of Bassanese, as neither employee was in a supervisory role to the other. Nonetheless, Bassanese was awarded the same $15,000 in damages against the company for the assault and battery of its employee.
This decision represents a reaffirmation that an employer can be held vicariously liable for the actions of its employees against other employees, including assault. For vicarious liability to be imposed against an employer for the actions of an employee, there must be an employment relationship and the act must be committed within the scope of the employment relationship. If the employee’s conduct is sufficiently connected to his or her employer, whether the act is authorized or not, the employer will often be liable. If the employee engages in an independent act outside of the employment relationship, the employer may escape liability.
It is notable that the case was not defended, so it is difficult to determine how this decision will be applied going forward and if any assault of an employee against another employee could result in automatic liability for an employer. In each case, the Court will consider the following factors: the employee’s position, scope of duties, and instructions and directions that may have been provided to the employee about proper or improper conduct. The Court will interpret the notion of “acting within the scope of employment” very broadly so it is very important for the employer to be proactive in controlling the conduct of its employees through workplace policies, training and if necessary, appropriate disciplinary actions when misconduct occurs.
The Court rejected the claim against the Company for intentional infliction of mental suffering as there was no evidence of a visible and provable illness resulting from the harassment or assault. Although she was awarded $50,000 for aggravated damages arising from the manner in which she was terminated (ignoring her complaint and failing to investigate or take any steps to remedy the misconduct) and damages equivalent to 19 months of reasonable notice. In total, this employee was awarded damages totalling $194,433.17 arising in large measure from the employer’s failure to properly address a complaint of harassment between two employees. Employers should be aware that they have a statutory obligation pursuant to the Occupational Health and Safety Act to investigate any “incidents or complaints of workplace harassment”. This obligation is triggered as soon as an employer is aware of any possible harassment in the workplace and does not require a formal written complaint. As can be observed from this case, an employer can face significant liability if this responsibility is not taken seriously.