Worker had testicle removed after punch by supervisor

Ontario worker and employer given six-figure fine after discrimination case

Worker had testicle removed after punch by supervisor
Jeffrey R. Smith

“Blow-ups happen all the time in workplaces and people have disagreements… but when you're in a position of authority and power over someone and you're not only reminding them of that but humiliating them in front of others and consistently taking them down a notch, that's [not] a one-time incident.”

So says Kelsey Orth, a partner at CCPartners in Brampton, Ont., after an Ontario employer turned a blind eye to repeated verbal and physical abuse of a worker by a supervisor, leaving the employer and the supervisor liable for almost $300,000 in damages.

The 49-year-old worker was born in Albania and came to Canada in 2017. He initially found work for a paving company that was “off the books” because he didn’t have a work permit.

The worker didn’t like his supervisor because he was harsh and sometimes made profane and discriminatory comments to him.

In November 2018, the supervisor left the paving company and joined Universal Structural Restorations Limited (USRL), a building restoration company in Concord, Ont. The supervisor invited the worker to join him, and the worker agreed because he thought he would be able to work under other supervisors.

The worker started working off the books at USRL and the company discussed getting him a work permit.

Supervisor hit worker

In December 2018, the worker attended a meeting at a job site. Another supervisor asked the worker’s supervisor if the worker could join his crew, but the worker’s supervisor said no. The worker suggested that he would be happy to go wherever the company needed him, but his supervisor swung his left fist towards him, hitting him in a testicle and knocking him to the ground.

A few days later, the worker reported the incident to a manager. At a Christmas party later that month, the worker told the office manager and the owner about the punch and the supervisor’s name-calling.

The worker was separated from the supervisor, but he was moved back after one month. USRL did not advise him of any corrective or disciplinary actions taken against the supervisor.

The worker didn’t initially seek medical attention because he didn’t have an Ontario health card, but the pain was bad enough that he took significant amounts of painkillers. He also had difficulty having sex with his wife.

The worker received a work permit tied to USRL in January 2019.

In March 2019, the supervisor asked the worker to perform unpaid renovation work at his home as “payback” for his help with the worker’s work permit issues. The worker felt he had no choice and that the work was connected to USRL and his work permit.

A worker’s threats and aggressive behaviour at work were grounds for dismissal, an Alberta court ruled.

Workplace assault led to surgery

The worker saw a doctor in April 2019 and, after unsuccessful treatment, his damaged testicle was removed. According to the worker, he sent photographs of his surgical scar to the supervisor, to which the supervisor replied “I have your balls in my hand.”

In May 2019, the worker fell off a ladder at work. He was in significant pain and asked for an ambulance, but management didn’t want to call one because USRL couldn’t afford another workers’ compensation claim. The worker remained where he fell for nearly five hours until he was driven home.

USRL told the worker not to report the injury to the Workplace Safety and Insurance Board (WSIB) and suggested that he tell doctors that he fell down the stairs at home. The company later prepared a report that stated the worker did not request an ambulance.

Avoiding WSIB claim

The company was clearly trying to avoid a WSIB claim and associated costs, which denied the worker proper medical treatment, says Orth.

“It was pretty blatant, ignoring the general duties as an employer not just to maintain a safe workplace but to get anybody the proper medical attention that they need when something happens,” he says.

The worker returned to work in September and his supervisor mostly ignored him. Although he had work restrictions, he was assigned to carry heavy buckets of cement pieces.

In January 2020, the supervisor started calling the worker names again and, when the worker told him that the testicle injury made intimacy difficult, the supervisor said that he would punch him in the other testicle and “take care” of his wife.

Case law examples demonstrate that indirect threats are a risk to workplace safety, according to the employment law blog.

Worker quits

The worker submitted his resignation and sued USRL for “humiliating, degrading, and embarrassing conduct” and “discriminatory language” by the supervisor, the assault, and his treatment after his workplace injury.

The court found that the supervisor’s strike to the worker’s testicle was intentional and delivered with an intent to cause harm – although not to the extent that was the actual result – and contributed to physical issues for the worker. This constituted battery for which both the supervisor and USRL were liable, said the court.

In addition, the physical and verbal abuse by the supervisor contributed to the worker’s stress, anxiety and mental suffering, leading to joint liability for the tort of assault, said the court.

“The employer ignoring the situation seemed to embolden the supervisor to continue with what he was doing,” says Orth.

The court also found that USRL engaged in “a series of acts that poisoned the workplace and undermined the employee/employer relationship,” and the worker’s resignation was because of his treatment. A reasonable, objective person would view USRL as no longer intending to be bound by the employment contract, resulting in constructive dismissal, the court said.

The Conference Board of Canada offered six ways for employers to reduce the costs of workplace violence and harassment.

Employer did nothing

The court noted that USRL took “little to no steps” to end the supervisor’s abusive conduct and it failed to enforce workplace policies designed to protect employees. This made the worker’s employment intolerable and caused him mental distress and loss of dignity, warranting aggravated or moral damages, said the court.

The court also felt that punitive damages against USRL were appropriate for a “denunciatory and deterrent effect.”

“It was pretty clear on the evidence that the [worker] told his employer – if not right away, then certainly in a timely manner – not just about the physical part, but also the demeaning and derogatory language the supervisor used towards him regularly, and the employer essentially did nothing,” says Orth. “I think most employers recognize that their duty under the Occupational Health and Safety Act is to keep a workplace free from discrimination and harassment – every complaint has to be taken at face value, at least in terms of doing some kind of investigation into it.”

“The court had no sympathy for the employer here, even though the supervisor was the perpetrator –the employer let it happen and, therefore, the court pretty easily lumped most of the behavior in with the vicarious liability for the employer,” Orth adds.

The court agreed that USRL violated the Ontario Human Rights Code by failing to conduct a proper investigation into the worker’s complaint. In addition, the supervisor was individually liable for discrimination and harassment on the basis of race, ancestry, place of origin, ethnic origin, citizenship, and sex, said the court.

A correctional institution fostered a poisonous workplace when it failed to properly address racial and sex discrimination complaints brought forward by a worker, an Ontario arbitrator ruled.

Employer vicariously liable for battery

The court found that USRL and the supervisor were jointly and severally liable for general and aggravated damages of $100,000 for the tort of battery and $10,000 for the tort of assault.

“Because the actual battery happened in the course of employment, the court said, ‘You allowed this to happen to the employee and therefore we're going to hold you jointly and severally liable, because it was within the context of employment,’” says Orth.

The supervisor was also ordered to personally pay punitive damages of $25,000 for the tort of battery.

In addition, USRL was ordered to pay $50,000 to the worker for violating the Ontario Human Rights Code, four months’ wages in in lieu of notice, $75,000 in aggravated or moral damages, $25,000 in punitive damages, and unpaid wages – less mitigation income earned by the worker.

Although USRL apparently had a harassment policy, the supervisor didn’t pay attention to it and the company didn’t enforce it – and they all ended up paying for it, says Orth.

“You would hope that most employers aren't dealing with situations like this, but where you have situations that do arise, you’ve got to make sure that they don't escalate and that you as the employer are stepping in where necessary,” he says. “Ensure that any disagreements don't escalate to this level and that you know that your supervisors aren't taking advantage of people or otherwise mistreating the employees.”

See Osmani v. Universal Structural Restorations Ltd., 2022 ONSC 6979.