Can You Sue for Emotional Injury due to Workplace Violence?
If the conduct suffered is serious enough, it could indeed be compensable through general damages in court. It is important to know your rights regarding workplace violence. An experienced employment lawyer can walk you through the situation, assess your options, and help you move on with dignity.
Definition of workplace violence
Under Ontario’s Occupational Health and Safety Act, workplace violence here refers to the use of physical force that causes, or could cause, physical injury to a worker. Even attempts and/or threats to do so fall under the umbrella of workplace violence. Federally regulated workplaces, such as telecommunications companies and banks, have similar definitions and rules.
Employer Obligation
Almost all employers are required to have regularly updated workplace violence programs. These must lay out how the employer reduces the risk of workplace violence arising. It must also lay out the procedure for reporting such incidents, protocol for getting help immediately if it occurs, and how the employer will investigate and deal with such complaints.
Workplace violence need not come from a co-worker. It can also be suffered at the hands of an outsider. For example, OHSA makes specific mention of an employer’s obligation, where it is aware or ought reasonably to be aware of domestic violence that would likely result in physical injury in the workplace, to take every reasonable precautions to protect the worker.
These protections can extend to the right to refuse work in certain circumstances if the worker has reason to believe that it would be likely to endanger them through workplace violence.
Coverage
Importantly, these laws apply to nearly all workers; independent contractors are not generally excluded as a result of their employment status.
While there can be specific exceptions and amended duties from OHSA (and the equivalent regulations for federally regulated workplaces under the Canada Labour Code) regarding the type of workplace, the worker’s position, and the facts of the case, an experience employment lawyer can best advise on whether and how such exemptions and differences apply to your matter.
When can you sue for emotional injury due to workplace violence?
Whether the emotional injury suffered from workplace violence would be compensable depends on case to case. To be eligible for damages due to emotional injury, it must rise beyond the level of hurt feelings. If it is a relatively minor one-off threat that is dealt with appropriately by the employer, it could be difficult to secure damages for emotional injury. However, if it is an incident (or multiple incidents) that require a worker to get medical attention, such as therapy, to deal with the impact, then the case is much stronger for aggravated, moral, or even potentially punitive damages.
While it is possible that certain claims related to emotional injury from workplace violence could be brought in stand-alone claims, they often are tied to wrongful dismissal claims. This gives workers more ammunition to claim damages and can make it a more cost-efficient endeavour; even if one portion of the claim does not carry the day, the other could still be successful in securing damages. Further, these claims often arise in the context of acrimonious dismissals to begin with. Even if not, the emotional injury from workplace violence could create a toxic workplace and may cause a worker to be constructively dismissed. As with the other issues relating to emotional injury arising from workplace violence, it is fact dependent. The employment lawyers at Whitten & Lublin can help you take control of your situation and understand what your potential entitlements are.
While litigation to the point of trial is sometimes necessary, it can be very emotionally taxing. This is particularly the case in situations where a worker has suffered emotional injury from workplace violence and may have to constantly re-live the experience throughout the process. Unfortunately, the backlog of the courts nowadays contributes to this issue.
However, emotional injury arising from workplace violence can still be leveraged in settlement negotiations. General damages for emotional injury are non-taxable, whether awarded at trial or as part of a settlement. A strong claim can be leveraged to obtain a favourable settlement for workers that compensates them for the emotional injury suffered, saves them legal fees, but also does not force them to have to constantly be re-traumatized throughout the court process.
What should you do if you have experienced workplace violence?
No worker deserves to suffer through workplace violence. Unfortunately, it is often a reality, and even the best response from an employer may be insufficient to make affected workers whole. Sometimes, a botched or non-existent investigation from an employer could further aggravate the impact of a workplace violence incident. Case law has shown that inadequate responses from employers can contribute to awards of general damages at trial.
You don’t have to suffer through workplace violence alone. An experienced employment lawyer can help you determine what forms of recourse and potential damages are open to you. If you would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.