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Setting a new “high-water mark” for damages in constructive dismissal cases in Ontario, a jury in Windsor, Ontario has awarded a former Walmart employee $1.46 million in damages, after finding that she was constructively dismissed. In delivering its verdict on October 10, 2012, the jury concluded that the employee had suffered abusive treatment, including mental suffering and assault, at the hands of her supervisor, and awarded damages against Walmart totalling $1.21 million for constructive dismissal, intentional inflection of mental suffering, assault, and punitive damages. The Supervisor was also found liable for damages in the amount of $250,000, in respect of the intentional infliction of mental suffering and punitive damages.
Interestingly, the award exceeded the amount that the employee had claimed by $260,000.
Counsel for Walmart has recommended that the constructive dismissal award should be appealed.
While the damages awarded in this case may very well be reduced on appeal, the negative media attention that the trial decision has attracted cannot be reduced so easily. In that regard, the Windsor Star has already published an article entitled “Ex-Walmart employee awarded $1.4 million for mistreatment by manager”, and other media outlets are reporting the story under similar headlines.
Inasmuch as the damages in this case flow from abusive treatment and harassment, this decision underscores the importance of a functioning workplace violence and harassment prevention program, and the imperatives to address employee complaints effectively and to initiate workplace investigations when appropriate. Employers in Ontario should be mindful of the following legal obligations and best practices to reduce the risk of liability in similar circumstances:
- Implement a workplace violence and harassment program, as prescribed by the Occupational Health and Safety Act. This must include a workplace assessment, workplace-specific policies and procedures, and training for all personnel.
- Inform employees of their rights under the Ontario Human Rights Code and, in particular, their right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
- Foster a workplace environment that encourages employees to report situations of workplace violence, harassment and discrimination to management.
- Conduct thorough investigations of all reported incidents of workplace violence, harassment or discrimination, communicate findings to the employee who reported the incident, and revise policies and procedures to prevent similar occurrences in the future.
- Take appropriate disciplinary action against personnel, including supervisors and managers, who have contravened workplace policies and procedures. In doing so, be sure to adhere to the organization’s discipline policy.
Employers should also recognize that, in addition any legal liability that may result, incidents of workplace violence, harassment and discrimination can also attract unwanted and negative media attention.