Workplace-bullying suit may be a first

In today's hyper-vigilant world, you dare not compliment a female co-worker about her new skirt for fear of being accused of sexual harassment.

You dare not tell an ethnic joke in case someone accuses you of a racist slur. But you can use words -- repeatedly and deliberately -- to belittle, harass and emotionally abuse a co-worker. Chances are you'll get away with it.

Only about a dozen Canadians have ever gone to court over the emotional damage allegedly inflicted on them.

But now -- in what is believed to be a first in Manitoba -- a prominent Winnipeg company and one of its former supervisors is being sued for alleged workplace bullying, using a 19th-century cobwebbed corner of common law known as "the intentional infliction of mental suffering."

Timothy Fry, the lawyer for the 35-year-old woman who first filed her statement of claim nearly a year ago, says one element of the suit may also make it unique in this area of Canadian law. The Fort Richmond mother of two is still employed by the company she is suing.

But Gina Balasubramanian has been on stress leave since January of 2001 -- allegedly as a result of being "mistreated and harassed" over a period of more than two years. The lawsuit is in its preliminary stage, and no allegations have been proven.

At the heart of her suit is an allegation that the employer knew about the abuse, yet allowed it to continue.

Ironically, the employer being sued -- Winnipeg-based payroll and human resource specialist Ceridian Canada -- was named one of the 50 Best Companies to Work For in Canada in a January 2002 Report on Business article, published a year after the woman went on disability leave. The ratings are based on human resources practices and employee morale surveys.

"We have a long-standing commitment to making employee satisfaction a top business priority," then-company president Richard Ball said in a corporate news release acknowledging the honour.

Court cases like Balasubramanian's are rare in Canada for several reasons.

Unlike countries such as Sweden, which has passed laws to protect workers, there is no specific law against workplace bullying in Canada or the United States.

The old childhood mantra -- sticks and stones will break my bones, but names will never hurt me -- lingers on.

And on.

A recent survey by Wayne State University Prof. Loraleigh Keashly found more than one in five of 1,800 Michigan residents claimed to have been "significantly mistreated" by someone at work within the last year.

That matches numbers found worldwide.

To win a case based on 'intentional infliction of mental suffering,' a plaintiff must prove three elements: That there has been flagrant conduct; that the conduct was calculated to produce mental distress; and that it has produced actual harm resulting in a provable illness.

Balasubramanian alleges that she was constantly verbally abused by her female superior, and slapped across the head on at least two occasions.

A single mother at the time, Balasubramanian also alleges that her supervisor routinely:

* Made derogatory and demeaning statements to her, including "statements to the effect of 'You're f------ stupid,' 'You're an idiot,' 'You look awful,' 'Shut up' and 'I don't care about your f------ opinion.'"

* Called her "Olive Oyl," "Dyke," "Stupid," and "Stooge."

* Denied her "certain employment privileges" such as coffee breaks and "opportunities to participate in certain office functions or celebrations."

She alleges that she told a Ceridian manager what was happening, and claims that the abuse continued. Balasubramanian also claims that when she warned her supervisor that she was going to complain to management, she was threatened with the loss of her job.

The statement of claim contends that as a result of the alleged mistreatment, the young mother suffered depression and anxiety, requiring psychiatric care.

Balasubramanian is seeking damages, including costs of medical and psychiatric treatments.

Lawyers for the company and the female supervisor -- who is no longer employed by Ceridian -- have yet to file statements of defence.

They filed a motion to have the suit struck out on the grounds that it was "scandalous, frivolous or vexatious" and had no basis in law.

But last month -- while striking out certain portions of the statement of claim -- a Court of Queen's Bench ruling allowed the suit to continue.

In its judgment, the court underscored that it wasn't judging the allegations -- which are not proven. A claim can only be struck out if it is doomed to complete failure, and the court ruled it was not.

Cynthia Lazar, the lawyer representing Ceridian, said she will wait to see what amendments are made to the statement of claim before deciding whether they need more particulars, or whether they file a statement of defence responding to the allegations.

Jason Ingimundson, counsel for the female supervisor, said they will "vigorously defend" the suit.

Fry, Balasubramanian's lawyer, says his client just wants to right what she considers to be a wrong. Often, that's all people really want.

Now if only Canadian governments would do the right thing and raise emotional abuse in the workplace to the same level as, say, leering at a pretty co-worker.

gordon.sinclair@freepress.mb.ca

Republished from the Winnipeg Free Press print edition September 6, 2003 $sourceSection$sourcePage