Worst-boss ever: Testicle punch leads to $300,000 judgment in bizarre case
Health & Safety
I’ve been reading employment and labour law cases for about 25 years. And rarely have I come across a ruling that stopped me in my tracks as much as the Ontario Superior Court of Justice ruling in Osmani v. Universal Structural Restorations Ltd.
It grabbed my attention with the fact the worker was suing his employer, in part, because his boss had punched him in the testicle.
But this is where it takes a nasty turn. And apologies in advance to the more squeamish of our readers, but the assault was so violent that one of his “testicles turned to mush, stopped functioning and was ultimately surgically removed.”
And there’s even more to this story. It’s because the worker, Rezart Osmani, returned to the job after that attack, reporting to the same boss.
He came to Canada from Albania as an “off the books” labourer with Universal Structural Restorations (USRL) and later secured temporary foreign worker status. Osmani clearly felt he didn’t have a lot of options to rock the boat, lest he lose his job.
Fall from a ladder
After coming back to work following the assault, Osmani fell from a ladder and seriously injured himself. He laid on the ground for hours, from about 10:30 a.m. until 3 p.m. There was discussion about calling an ambulance, but there were concerns — by his testicle-punching boss — that the company couldn’t afford another workers’ compensation claim.
Instead, he was helped to a passenger vehicle and left at home to recover on his own. After days of struggling, and even buying his own crutches to be able to move around, he gave in and went to the doctor. While he told his doctor what happened, he did not disclose the name of his employer or his social insurance number because he didn’t want USRL to get into trouble.
After being at home for some time, his boss went to see him and told him he had to come back to work because the company couldn’t afford to pay him to stay home any longer.
Osmani finally hit a breaking point and, despite being told not to report his injury to the Workplace Safety and Insurance Board (WSIB), he went ahead and filed a claim and began receiving benefits.
Return to work
Osmani went back to work again, starting with light duties. His boss would regularly refer to him as “a bitch” or “his bitch.”
To add insult to injury, Osmani confided that the testicle injury was making things difficult with his wife. This is what his boss said in response:
“(He) suggested that he would give Mr. Osmani a punch in the other testicle, have that testicle removed also and then ‘take care’ of his wife,” the Ontario Superior Court of Justice said in its ruling.
Osmani finally had enough and quit his job towards the end of February 2020, despite the fact he had one year remaining on his work permit and that leaving USRL meant he could no longer work. It also spelled the end of his health care coverage.
Once he quit, he “felt like a free man.”
There is a lot to unpack from this story. Workplace violence, harassment, bullying and the tenuous employment for foreign workers.
The only good news, if we can call it that, is that the punishment in this case seems to fit the crime. The court awarded a slew of damages totaling $295,000 including:
- $100,000 for general and aggravated damages for battery, jointly and severally between USRL and his boss
- $25,000 for battery against his boss alone
- $10,000 for general damages for assault, jointly and severally between USRL and his boss
- $4,364.70 for wrongful dismissal (four months’ notice)
- $75,000 in aggravated or moral damages
- $25,000 in punitive damages
- $5,794 in unpaid wages
- $50,000 in damages against USRL for violations of the human rights code.
And the cheque cutting isn’t finished. Sources tell OHS Canada that the costs award in this case could be massive. We’ll keep an eye on that as well.
The lessons for employers
We always look to what we can learn from these cases. And there are a few takeaways from this ruling — one of the biggest being a reminder that the employer can and will be held vicariously liable for the actions of its employees.
USRL did not punch Osmani in the testicles. It, of course, did not condone such an action. But it didn’t properly investigate the attack.
“USRL did precious little to investigate the incidents or prevent their recurrence. The incidents occurred during the course of Mr. De-Almeida’s direct supervision of Mr. Osmani at the behest of USRL. Taken together, these facts support a finding of vicarious liability for assault,” wrote Justice Di Luca.
You can read the full case here. It’s a long read but a solid reminder of the dangers of letting a tyrant boss run rampant in your workplace. Not only does it put your employees at risk, but it can destroy your reputation and leave you writing a very large cheque at the end of the day.
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