Employer Rehires Supervisor Who Sexually Assaulted Employee

An Ontario employee was ordered to pay her former employer's legal fees after she made a "substantially unsuccessful" bid to sue her employer following its decision to rehire "her abuser," a former supervisor fired ten years earlier amidst sexual harassment complaints.

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The plaintiff in Colistro v. Tbaytel, 2019 ONCA 197, was a twenty-year, “valued and respected” employee of her company. Several years earlier, in 1996, Colistro’s supervisor had been terminated for sexually harassing her and other employees. She was understandably shocked and upset when the company announced in 2007 that it would be rehiring her former supervisor to a Vice-President role.

Colistro wrote to management to draw the past incidents to their attention. Despite also indicating that she was “not eating or sleeping, was vomiting and on the verge of a nervous breakdown,” the company decided to go forward with the hiring.

In the words of the trial judge, the employer demonstrated a “blatant disregard” for Colistro’s interests. She was “objecting ‘vehemently’ to her abuser being hired,” and the employer hoped to put her concerns to rest by simply “shuffling her to another building.” This “minimized and invalidated” Colistro’s sexual harassment complaints and was described as conduct that “exceeds insensitivity or poor management.”

Colistro did not return to work. She was diagnosed with Post Traumatic Stress Disorder and depression. She sued for “constructive dismissal” and “intentional infliction of mental suffering.”

After mixed results at trial and on appeal, she would be ordered to pay her former employer’s legal fees.

CONSTRUCTIVE DISMISSAL

Colistro proved her constructive dismissal claim.

An employee may be “constructively dismissed” when her employer acts in a way that makes her continued employment objectively intolerable. The employer’s conduct is regarded as a breach of an implied term of the employment contract which requires the employer to treat employees “with civility, decency, respect, and dignity” or maintain a work atmosphere that is “conducive to the well-being of its employees.”

On its own, proof of a constructive dismissal does not provide an employee with any actual compensation for the employer’s improper conduct. A finding of constructive dismissal only enables an employee to quit and still recover termination pay as though she had been fired without notice in otherwise inoffensive circumstances.

Colistro successfully proved she was constructively dismissed. But after deducting short-term and long-term disability payments she had received, her award for pay-in-lieu of notice of termination amounted to only $14,082.

BAD FAITH CONDUCT IN THE MANNER OF DISMISSAL

Colistro also won compensation for “bad faith conduct in the manner of dismissal.”

In wrongful dismissal cases (and constructive dismissal cases), additional compensation can be awarded if an employer engages in conduct during the course of dismissal which is unfair or in bad faith. Unduly insensitive conduct giving rise to a constructive dismissal may fit this category and can form the basis for an additional award for harm suffered by an employee as a result.

Colistro was awarded $100,000 for bad faith conduct damages. This is a fairly substantial award when compared to other Ontario bad faith conduct cases from 2018.

INTENTIONAL INFLICTION OF MENTAL SUFFERING

However, Colistro failed to prove her claim of “intentional infliction of mental suffering.”

A claim of “intentional infliction of mental suffering” is proven when a plaintiff establishes conduct that is,

  1. flagrant and outrageous,

  2. calculated to produce harm, and which

  3. results in a visible and provable illness.

Although the trial judge and Court of Appeal both agreed that the employer’s conduct was “flagrant and outrageous,” Colistro’s intentional infliction of mental suffering claim failed because it wasn’t clear the employer intended to cause her harm or knew that the harm she suffered was substantially certain to follow.

The Court of Appeal noted that employees cannot pursue claims for “negligent infliction of mental suffering in the employment context.”

Colistro was therefore awarded nothing for this claim. Her failure to prove this major component of her lawsuit produces a disappointing result. Her overall award of $114,082 was less than what her employer had previously offered to settle the proceedings, and her employer was regarded as the substantially successful party in the litigation. As a result, Colistro was ordered to pay $200,000 for her former employer’s legal fees.

The net result is that Colistro is required to pay her former employer $85,918, despite recognition from both levels of court that she was badly mistreated.


 

Ben J. Hahn is an Ontario Employment and Civil Litigation Lawyer. Learn more about Ben here.

 

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