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AN EMPLOYER CAN BE HELD LIABLE FOR THE ACTIONS
OF ITS EMPLOYEES
by Earl Altman, Employment Lawyer
Under the legal principle of vicarious liability, employers can
be held liable for the actions of their employees taken during the
course of employment. Such liability will extend for damages caused
as a result of insensitive statements, damages for harassment, or
discriminatory behaviour. The potential cost to an employer arising
from such liability was demonstrated in the recent decision of Sulz
v. R.C.M.P. In this decision of the British Columbia Court of Appeal,
the Court upheld a trial decision in which an employee was awarded
damages of $950,000.00 against the employer. The damages flowed
from the actions of the employee’s supervisor who made numerous
improper comments to the employee during the course of her pregnancy
and for approximately two years after her return from maternity
leave. The gist of these remarks related to the allegation that
the employee was milking the system by taking maternity leave and
that he would enlist her co-workers to “get her” upon
her return from maternity leave. The employee was legitimately concerned
by these statements. She was diagnosed as suffering from major depression
which resulted in an inability to sleep, significant weight loss,
and other psychological trauma. The employee had complained to her
supervisor about the conduct of her co-worker. Her supervisor took
no steps to address her concerns.
The Court concluded that the harassment which the plaintiff detailed
was, in fact, the cause of her medical condition. The psychological
trauma was so severe that the Court concluded that she was unlikely
to ever work again. It was on this basis that the Court awarded
her the significant damages that it did.
The Court awarded the damages against both the employee and the
employer. The Court found the employer liable on the basis of the
employer’s failure to enforce its own harassment policies
and in its failure to take steps to prevent the conduct complained
about.
The case highlights the fact that creating and publishing a harassment
policy is not sufficient. Employers must take active steps to ensure
that the provisions of the policy are adhered to and that instances
of harassment are addressed promptly and adequately. Should you
require assistance in drafting such anti-harassment policies or
developing strategy to deal with harassment, please contact Earl
Altman of our office.
About the author:
Earl Altman is a partner with the Toronto law firm of Garfinkle
Biderman LLP. He can be reached at (416)869-1234 Ext. 280 or ealtman@garfinkle.com
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