Wal-Mart Ordered to Compensate Former Employee for Workplace Bullying

To state the obvious, there is no precedent until it is done for first time.  So said the Ontario Court of Appeal in confirming a record damage award against an individual employee in the case of Boucher v. Wal-Mart Canada Corp. 2014 ONCA 419.

 Meredith Boucher began working for Wal-Mart in 1999.  She was a good employee.  In 2008, Boucher was promoted to the position of assistant manager at a Wal-Mart store in Windsor, Ontario.   She reported to the store manager, Jason Pinnock. 

 

For health reasons, Wal-Mart is required to maintain temperature logs which record temperatures of food and dairy products stored in its coolers.  Boucher was responsible for ensuring the logs were maintained.

 

In May of 2009, Boucher went on a month long Wal-Mart course and another assistant manager assumed responsibility for maintaining the temperature logs.  However, that employee did not complete the logs.  When Boucher returned to the Windsor store at the end of her course, Pinnock told her that the incomplete log would negatively affect the store’s pending evaluation and in turn would negatively affect his own evaluation as store manager.  Pinnock told Boucher to falsify the log.  Boucher refused to do so.  Because she refused, Pinnock subjected Boucher to a disciplinary “coaching” session.   Subsequently, Pinnock became abusive towards Boucher.  He belittled, humiliated and demeaned her, continuously, often in front of co-workers. 

 

Wal-Mart holds itself out as a business that regards its employees highly.  It has a number of workplace policies intended to reflect its concern for its employees.  One such policy is Wal-Mart's open-door communication policy.  Wal-Mart encourages its employees to report on a confidential basis concerns about how its stores are operated or how its employees are treated. 

 

Wal-Mart also has a prevention of violence in the workplace policy.  It undertakes to take all employee reports of incidents seriously and to protect an employee making a complaint from acts of retaliation.  In addition, Wal-Mart has a harassment and discrimination policy.  The purpose of this policy is to protect employees from unwelcome conduct that offends a person’s feelings.  Wal-Mart, through its policies, requires all of its employees to treat each other with dignity and respect. 

 

Accordingly, Boucher complained about Pinnock’s conduct and his treatment of her to three senior management representatives of Wal-Mart.  The management team said they would investigate her concerns.  They also told her to report any new incidents of misconduct.  But they also cautioned Boucher that if her concerns were found to be unwarranted, she would be held accountable for raising them. 

 

Wal-Mart’s management team investigated Boucher’s complaints.  They told her that they found the complaints to be “unsubstantiated”.  They also told her that she would be held accountable for making these unsubstantiated complaints but they had not yet decided what discipline she would face.  Pinnock on the other hand was not disciplined for his conduct or even cautioned about it.  He was spoken to only about his use of inappropriate language.   

 

Here is a sampling of Pinnock’s conduct.  He repeatedly told Boucher in front of other employees how stupid she was and that her career was blowing up; he pounded his chest and said “let me know when you can’t fucking handle it anymore”; he berated Boucher in front of other managers and customers saying “this is a fucking shit show, look at this fucking mess”; he constantly called Boucher an idiot and stupid.

 

After the management investigation at the end of Boucher’ shift, Pinnock again berated her because 10 extra skids of product had not been unloaded.  Pinnock grabbed Boucher by the elbow in front of co-workers.  He told her to prove to him that she could count to 10.  He prompted her by initiating the count, then told her to count out loud along with him.  Boucher was so humiliated she left the store.  Boucher sent Wal-Mart an email advising that she did not intend to return to work until her complaints about Pinnock were resolved to her satisfaction.  They never were and Boucher never returned to work.  Boucher commenced an action for constructive dismissal and damages.

 

The Court of Appeal commented on Pinnock’s motives.  Pinnock had told other managers at the store that he would not stop harassing Boucher, “not until she fucking quits”.  He was overjoyed when she did so.

 

At trial the jury awarded damages against Pinnock of $100,000 for intentional infliction of mental suffering and punitive damages of $150,000. 

 

Against Wal-Mart, the jury awarded damages of $200,000 for aggravated damages and $1 million in punitive damages. 

 

Pinnock and Wal-Mart appealed to the Ontario Court of Appeal.  The Court of Appeal reduced the damages against both Pinnock and Walmart.  It found that the jury had reasonably found Pinnock liable for intentional infliction of mental suffering.  His conduct was flagrant  and outrageous.  He intended to produce the harm that eventually occurred and Boucher had suffered a visible and provable illness.  The damages award of $100,000 was high but not unreasonable.  However, the award of punitive damages against Pinnock should be reduced to $10,000.  An award of $150,000 was not required for the purposes of retribution, denunciation and deterrence. 

 

As for Wal-mart, the Court of Appeal held that the award of aggravated damages against Wal-Mart in the amount of $200,000 was not excessive and did not result in double recovery by Boucher.  While Pinnock’s misconduct brought about Boucher’s mental anguish, the unfair way Wal-Mart dealt with that misconduct brought about her constructive dismissal.  Wall-mart’s own conduct justified a separate and substantial award for aggravated damages.

 

The Court of Appeal found that the trial judge had erred in instructing the jury that the tort committed by Pinnock could be an actionable wrong by Wal-Mart that supported a finding of punitive damages against it.  However, the error was harmless as Wal-Mart had committed an actionable wrong that supported an award of punitive damages by breaching its duty of good faith and fair dealing towards Boucher.  In light of the compensatory damages awarded, an award of punitive damages in the amount of $1 million was not rationally required to punish Wal-Mart or to give effect to denunciation or deterrence.  The Court of Appeal reduced the punitive damages against Wal-Mart to $100,000. 

Regards,

Blair