An employee who was fired for fighting after being harassed, did
not prove that his harassment or depression caused him to fight.
Therefore, the Human Rights Tribunal of Ontario was wrong to find
that his firing was discriminatory, the Ontario Divisional Court
The employee, Lombardi, had been diagnosed with hypothyroidism
and depression. He had suffered verbal abuse from a co-worker
who also sent text messages with homophobic slurs. Later,
Lombardi got into a fist fight with another co-worker. The
employer fired Lombardi, concluding that he had started the
fight. Lombardi filed a discrimination application with the
Human Rights Tribunal of Ontario. He claimed that the fight
was at least in part a reaction to being harassed because of
depression, perceived obesity and perceived homosexuality.
The Tribunal agreed. The employer challenged the decision in
The court decided that the Tribunal had made only a "bald
statement that the fight was at least in part a reaction to the
harassment." Lombardi had the onus of proving a link
between the harassment or discrimination and the fight, but he had
failed to prove the link. The court stated,
"Given the evidence as to Mr. Lombardi's responsibility
for starting the fight, the lack of any explanation to the Employer
about the impact of the harassment, the lack of any medical
evidence relating to mental distress and given the seriousness of
the misconduct, the conclusion that the dismissal was
discriminatory was unreasonable, as the adjudicator failed to show
why she reached that conclusion."
The court sent the matter back to the Tribunal for a new hearing
on whether the dismissal was discriminatory, as well as whether the
$20,000 damage award for harassment was appropriate.
This is an interesting and nuanced decision showing that the
fact that an employee is harassed does not automatically justify or
explain a violent response by the employee. Instead, the
employee must prove, through medical and/or other evidence, that
his or her response resulted from the harassment.
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