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Osmani v Universal Structure Restorations Ltd [Osmani] reminds employers that ignoring an employee’s misconduct can lead to considerable costs.

In Osmani, the Ontario Superior Court of Justice (“ONSC”) awarded nearly $300,000 to the plaintiff, a temporary foreign worker (“TFW”), who was mistreated by his supervisor—out of the total amount, the employer was liable for over $250,000 for not addressing the mistreatment.

Background

Mr. Osmani was initially hired by the employer, Universal Structural Restorations Ltd. (the “Employer”) “off the books” as a labourer, and performed several jobs including painting, sanding, and chipping. After approximately fourteen months of working for the Employer, the TFW resigned despite having one year remaining on his work permit.

Simply, the TFW could no longer tolerate being subjected to his supervisor’s (the “Supervisor”) abuse, which  the Employer did little to address. Specifically, the TFW was subjected to the following:

  • The Supervisor dropped shovels and flicked tape measurers towards the TFW’s testicles, and punched the TFW in his testicle so forcefully that it had to be removed due to the lasting severe and painful injury. The TFW complained to multiple people on several occasions about the punch;
  • The Supervisor repeatedly spoke to the TFW using:
    • derogatory and discriminatory language, such as “stupid Albanian” and “stupid Italian”;
    • profanity and threats of assault, such as “don’t piss me off or I’ll slap you”, “for two years, I have your balls in my hands”, and making sexual comments about Mr. Osmani’s wife and daughter; and
    • threats related to the TFW’s immigration status, such as “the first plane, you go back”;
  • The Employer interfered with the TFW’s ability to obtain compensation from the Workplace Safety and Insurance Board (“WSIB”) after he fell from a ladder at a job site;
  • The Employer constructively dismissed the TFW after he returned to work from his injury, as the work conditions were intolerable; and
  • The Employer directly, and vicariously through the Supervisor, exploited the TFW’s vulnerability as a temporary foreign worker.

The TFW brought a claim against the Employer and the Supervisor personally. Along with seeking damages against the Supervisor, the TFW sought damages against the Employer for pay in lieu of notice, unpaid wages, damages for intentionally delaying issuing the record of employment, loss of group health benefits coverage, violations of Ontario’s Human Rights Code [Code], aggravated and punitive damages, non-pecuniary damages for pain and suffering, and damages for the tort of human trafficking. His claim against the Employer alone added up to almost $1.7 million.

ONSC Decision

The ONSC ultimately found that the TFW left his employment due to the Supervisor’s abuse, which the Employer failed to address the abuse. Although some of the TFW’s claims were dismissed, including the claim for the tort of human trafficking, the Employer was liable for damages relating to assault, battery, human rights violations, constructive dismissal, and unpaid wages. The Employer was also ordered to pay hefty aggravated and punitive damages.

In assessing the evidence, the ONSC found that the Supervisor regularly demeaned the TFW, physically harmed the TFW including punching him in the testicle, and threatened physical acts (such as threats of slapping) if the TFW objected. The evidence also demonstrated that the TFW was instructed not to report his fall from a ladder to the WSIB.

The ONSC found that the Employer constructively dismissed the TFW by condoning the poisoned workplace, which undermined the employment relationship. Specifically, the Employer:

  • failed to respond to the TFW’s repeated complaints about the Supervisor’s conduct despite knowing that the Supervisor punched the TFW’s testicle;
  • failed to conduct any investigation into the TFW’s complaints or take any disciplinary action against the Supervisor;
  • failed to intentionally separate the TFW and the Supervisor;
  • failed to ask the TFW whether he required any accommodations with respect to his Supervisor; and
  • created a “false narrative” that essentially placed the blame onto the TFW for his fall off the ladder, and subsequently discouraged the TFW from filing a WSIB claim.

The ONSC acknowledged the vulnerable status of Mr. Osmani as a temporary foreign worker, and that the abuse he experienced had a significant and long-lasting impact on his mental health.

The Employer was held vicariously liable for the torts of battery and assault, as there was a strong connection between what the risk created by the Employer’s enterprise and the wrongful act. The following evidence was considered in coming to this finding:

  • The Supervisor was the TFW’s direct supervisor, and the TFW was subject to the Supervisor’s direction and control in relation to the duties performed for the Employer;
  • The punch occurred at a meeting where work assignments were being discussed;
  • The TFW was struck in the testicles when he offered to join another work crew for the benefit of the Employer—this was not an incident where the battery simply took place at the Employer’s workplace. The Employer created a scenario where the Supervisor directly controlled the TFW and directed work placements for his “crew” on behalf of the Employer; and
  • The Employer did little to investigate the incidents or prevent their recurrence.

While the TFW did not secure the $1.7 million he claimed against the Employer, the more than $250,000 that the Employer was either solely or jointly and severally liable for was a sizeable amount, particularly given that the wrongful dismissal damages amounted to less than $5,000. The substantial award was not only aimed to compensate the TFW, but to punish the Employer for the egregious treatment it had ignored.

Takeaways

Osmani illustrates how employers can be held accountable for their supervisors’ or managers’ misconduct. Where an employer knows of the inappropriate conduct but chooses to look the other way, they run the risk significant costs, as well as a workplace culture rife with unaddressed toxicity and abuses of power.

Along with having proper anti-harassment and anti-violence policies in place, employers should have a robust and clear complaints procedure so that concerns are properly addressed. Employers should also ensure they comply with their obligations under the Occupational Health and Safety Act, including ensuring investigations into complaints are being conducted where appropriate. If misconduct is found, employers should assess whether corrective action is needed, and ensure it is proportionate to address the misconduct.

Osmani also involved a claim for the tort of human trafficking, which includes labour trafficking. The TFW alleged that the Employer directly, and vicariously through his supervisor, exploited the TFW’s position of vulnerability as a temporary foreign worker. Although the claim was unsuccessful in this case, employers should ensure their workplaces do not create conditions that exploit their workers, especially ones in more vulnerable positions, such as temporary foreign workers.