In some unfortunate cases, employees may experience assault in the workplace by another employee. Besides the physical injury, this can lead to mental distress and the employee may seek punitive damages or special damages for the assault itself. The injured employee can pursue claims against both the person who assaulted them, as well as their employer for vicarious liability. A finding of vicarious liability by an employer for an assault in the workplace will depend on the circumstances of the case, including if the employer was aware of what occurred and did little to assist.

This blog will discuss what vicarious liability can look like for employers and will explore the factors to consider when determining whether an employer will be found vicariously liable, as well as the consequences that can arise. This post will also provide key takeaways for employers who are seeking to understand their obligations towards harassment and injury in the workplace and for employees seeking to understand their rights if they have experienced an assault from another employee in the workplace.

What is Vicarious Liability for Employers?

Vicarious liability for employers occurs when there is a connection between the assault and the employer, such that they are also found liable for actions by their employees. Vicarious liability will not exist in every scenario, even if an employee has assaulted another. In some cases, the employer should not be held responsible for the actions of an individual employee.

What are the Factors for Finding Vicarious Liability?

To find that an employer is vicariously liable for the actions of an employee, there must be a significant connection between the conduct permitted by an employer and the wrongful act. If there is a strong enough connection, the employer may also be held responsible. This is a means to provide an adequate remedy to the injured party, and to mitigate the chances of it occurring in future cases.

The court will consider the following factors when determining whether an employer is vicariously liable for the actions of an employee:

1. The opportunity provided by the employer for the employee to abuse their power in the workplace;
2. The extent to which the wrongful action was in the employer’s interests;
3. The extent to which the employment environment provided conditions that were conducive to the wrongful action (ie. conditions that encouraged the wrongful act);
4. The extent of power provided to the employee in relation to the injured party;
5. The vulnerability of the injured party.

Notably, even if the action was not in the employer’s interests, there may still be a finding that they were vicariously liable, as was the case in Osmani v. Universal Structural Restorations Ltd., which is discussed below.

What Happens if an Employer is Found to be Vicariously Liable?

The employer could be liable for damages arising from the wrongful conduct. For example, if an employee was liable for assault and battery, the employer could also be found liable for these torts. In relation to an assault, the injured party could also be suffering from mental distress and the employer could also be found to be liable for the tort of intentional infliction of mental suffering.

The employer could also be liable for punitive damages as a vicariously liable party, but only if there was specific reprehensible conduct committed by the employer specifically. Otherwise, punitive damages may not be found against an employer who is vicariously liable for an assault.

Depending on the seriousness of the wrongful actions, the employer could be vicariously liable for several thousands of dollars, as was the case in Osmani.

Court Finds Employer Vicariously Liable for Assault in the Workplace

In the case of Osmani v. Universal Structural Restorations Ltd., the court found that the employer was vicariously liable for an assault by the injured employee’s supervisor. In particular, the supervisor in the case had an ongoing pattern of abuse towards the injured party, including an incident of assault.

Central to the claim was an incident where the supervisor had punched the employee’s testicle in front of his co-workers. The court found that this punch was of significant force and caused long-lasting injuries to the employee. As a result, the employee had to have this testicle removed, which led to ongoing sexual dysfunction and mental distress. There was also evidence that the employee was suicidal after the assault.

Employee Continued to Work With Supervisor Who Assaulted Him

Within days of the incident, the employee had informed human resources, the owner of the company, and his close associate who oversaw the projects in the company. After his report to management, the employee was not informed that the matter was being investigated, nor that there would be any disciplinary actions against the supervisor. The employee was transferred to work under a different supervisor but eventually returned to work with the supervisor who assaulted him.

Before the incident, the supervisor consistently made degrading comments about his background as an Albanian-Italian. The employee also was uncomfortable bringing this abuse to management, as he did not have a work permit to work in Canada at the time, and he feared that his supervisor would raise this with the immigration authorities.

Supervisor and Employer Jointly Liable for Over $150,000 in Damages

The court found that the employer was vicariously liable for battery and assault by the supervisor because the employer kept the supervisor as his direct supervisor, even after the assault. Further, the assault occurred at a meeting to discuss work assignments in front of other co-workers and supervisors, as opposed to an assault that happened to occur on the workplace premises. In other words, the employer created a situation where the supervisor directly controlled the employee in the workplace. Additionally, the employer was aware of the assault that occurred but allowed the abuse to continue. The employer also did not investigate the matter to prevent it from occurring again.

While there was vicarious liability for assault and battery, the employer was not liable for punitive damages as there was no specific reprehensible conduct by the employer. Punitive damages were only ordered against the supervisor. The supervisor and the employer were jointly liable for over $150,000 in damages.

Key Takeaways for Employers Regarding Vicarious Liability

This case highlights the importance of employers taking action following any assault or abusive behaviour that occurs in the workplace, otherwise, they may be found to be vicariously liable for the incident and required to pay damages.

The Toronto Employment Lawyers at Grosman Gale Fletcher Hopkins LLP Provide Trusted Advice on Workplace Harassment and Violence

At Grosman Gale Fletcher Hopkins LLP, our team of trusted employment and labour law lawyers understand the complexities involved in workplace violence and harassment claims. We advise employers on their rights and responsibilities in various situations, including cases where they may be found vicariously liable for any assaults committed by an employee against another employee. We also work with employees to help them understand their rights and recover maximum compensation in workplace harassment cases. To speak with a member of our employment law team, contact us by phone at 416.364.9599 or reach out to us online.