Skoglund, J.
Plaintiff Philip Haverly appeals from a jury verdict for defendant Kaytec, Inc., claiming that the court erred by (1) admitting in evidence a statement made by him in an application for unemployment benefits, (2) denying a motion to amend his negligent supervision complaint, and (3) granting defendant’s motion for judgment as a matter of law on plaintiff’s negligent supervision claim. We affirm.
In April 1992, defendant hired plaintiff to work as an electrician’s assistant in its Richford facility. Soon after starting the job, plaintiff complained to management about vapors and noise levels in the plant and subsequently filed a complaint with the Vermont Occupational Safety and Health Office (VOSHA). VOSHA sent an investigator, who discovered violations of its regulations. After the VOSHA inspection, plaintiff claimed that in retaliation for filing the complaint,' his co-workers and supervisors began to harass, intimidate, and threaten him, and that these incidents frightened him to such an extent that he could no longer work for Kaytec. He left his job in October 1992.
Plaintiff filed this suit in October 1994, alleging he was constructively discharged in retaliation for calling VOSHA. Plaintiff pleaded two claims for recovery: (1) Kaytec violated 21 V.S.A. § 231 by discriminating and retaliating against him for complaining about [352]*352work place health and safety regulations, and (2) Kaytec negligently failed to prevent its employees from violating 21 V.S.A. § 231.
I.
Plaintiff first argues that the court violated 21 V.S.A. § 1314(d)(1) by admitting into evidence a statement made by him to the Vermont Department of Employment and Training a year after he left Kaytec. The statement was made in support of an application for unemployment benefits from his subsequent employer, Electronic Hospital. In the statement, plaintiff referred to his job at Kaytec as a “good paying and secure job with . . . many benefits.” Plaintiff claims that the statement was a privileged communication under the statute, and was therefore inadmissible.
Section 1314(d)(1) provides in relevant part:
Except as otherwise provided in this chapter, information obtained from any employing unit or individual in the administration of this chapter, and determinations as to the benefit rights of any individual shall be held confidential and shall not be disclosed or open to public inspection in any manner revealing the individual’s or employing unit’s identity, nor be admissible in evidence in any action or proceeding other than one arising out of this chapter. . . .
21 V.S.A. § 1314(d)(1) (emphasis added). The purpose behind this section is to encourage full, free and honest reporting to the Vermont Department of Employment and Training by protecting the identities and statements of both employers and employees. Cf. Hinojosa v. Joslyn Corp., 635 N.E.2d 546, 547 (Ill. App. Ct. 1994) (state laws prohibiting disclosure of unemployment compensation are meant to advance the administration of unemployment compensation laws by encouraging complete and accurate reporting from claimants and their employers); Simpson v. Oil Transfer Corp., 75 F. Supp. 819, 822 (N.D.N.Y. 1948) (law may only be properly administered when interpreted so as to encourage full, free and truthful reports from both employer and employee).
Plaintiff cites to cases from other jurisdictions enforcing the confidentiality of unemployment information. These cases, unlike this case, involved either former employees or employers as defendants in litigation, who used the privilege as a shield against civil and criminal liability. See id. (holding that statements cannot be used as basis for [353]*353an action for libel); Goggins v. Hoddes, 265 A.2d 302 (D.C. 1970) (action for libel); Hinojosa, 635 N.E.2d at 547 (confirming that privilege applies to defendant employers as well as employees); People v. Ellis, 470 N.E.2d 524, 526 (Ill. App. Ct. 1984) (holding that statements cannot be used as basis for criminal liability); Ohio Civil Rights Comm’n v. Campbell, 345 N.E.2d 438, 440-42 (Ohio Ct. App. 1975) (holding that statements cannot be used in support of civil rights charges).
Here, plaintiff is not using the privilege as a defense to a civil or criminal charge, but as a means of precluding relevant evidence from being introduced in a proceeding initiated by him. To hold that such statements are protected under this situation would do nothing to further the purpose of full, free and honest reporting, but might enable litigants to unfairly secure more than they deserve by bringing collateral litigation. We hold that by bringing this action and putting his reasons for leaving Kaytee at issue, plaintiff waived any protection he may have had under 21 V.S.A. § 1314(d)(1) with respect to statements made by him to the Vermont Department of Employment and Training. See Mattison v. Poulen, 134 Vt. 158, 163, 353 A.2d 327, 329-30 (1976) (applying same principle to doctor/patient privilege under 12 V.S.A. § 1612). Plaintiff cannot in one breath claim protection from disclosure under 21 V.S.A. § 1314(d)(1) and in another bring an action for damages putting the content of those statements directly at issue. To do so would be to make the privilege not merely a shield, but a sword as well. See State v. Valley, 153 Vt. 380, 395, 571 A.2d 579, 586-87 (1989).
II.
Plaintiff’s final two arguments both pertain to his negligence claim. On the first day of trial, defendant brought a motion for judgment on the pleadings under V.R.C.P. 12(b)(6), requesting that the court dismiss plaintiff’s negligence claim for failing to state a valid claim. Defendant argued that the Vermont Occupational Health and Safety Act preempted any common law right of action, including negligence, for “whistleblowing.” Plaintiff contended that the negligent supervision claim was a tort claim, and not brought under VOSHA. Plaintiff did not elucidate how the negligent supervision claim was based on the common law. The court deferred ruling on defendant’s motion to dismiss.
Midway through trial, the court sought clarification of plaintiff’s negligent supervision claim. After reviewing plaintiff’s pleadings and [354]*354requests for jury instructions, the court expressed its understanding that the negligent supervision action was based on an intentional or constructive discharge or discrimination claim, i.e., that management wrongfully allowed a violation of the VOSHA statute to occur. Counsel for plaintiff initially agreed with the court’s description of the claim and stated that the negligent supervision “caused discrimination or discharge.” The court, however, indicated that if the tort of negligent supervision was being raised, plaintiff must produce evidence of a wrong done to him that was different than the statutory violation alleged in Count I of his complaint. Plaintiff then pointed to evidence of verbal and physical abuse.1
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Skoglund, J.
Plaintiff Philip Haverly appeals from a jury verdict for defendant Kaytec, Inc., claiming that the court erred by (1) admitting in evidence a statement made by him in an application for unemployment benefits, (2) denying a motion to amend his negligent supervision complaint, and (3) granting defendant’s motion for judgment as a matter of law on plaintiff’s negligent supervision claim. We affirm.
In April 1992, defendant hired plaintiff to work as an electrician’s assistant in its Richford facility. Soon after starting the job, plaintiff complained to management about vapors and noise levels in the plant and subsequently filed a complaint with the Vermont Occupational Safety and Health Office (VOSHA). VOSHA sent an investigator, who discovered violations of its regulations. After the VOSHA inspection, plaintiff claimed that in retaliation for filing the complaint,' his co-workers and supervisors began to harass, intimidate, and threaten him, and that these incidents frightened him to such an extent that he could no longer work for Kaytec. He left his job in October 1992.
Plaintiff filed this suit in October 1994, alleging he was constructively discharged in retaliation for calling VOSHA. Plaintiff pleaded two claims for recovery: (1) Kaytec violated 21 V.S.A. § 231 by discriminating and retaliating against him for complaining about [352]*352work place health and safety regulations, and (2) Kaytec negligently failed to prevent its employees from violating 21 V.S.A. § 231.
I.
Plaintiff first argues that the court violated 21 V.S.A. § 1314(d)(1) by admitting into evidence a statement made by him to the Vermont Department of Employment and Training a year after he left Kaytec. The statement was made in support of an application for unemployment benefits from his subsequent employer, Electronic Hospital. In the statement, plaintiff referred to his job at Kaytec as a “good paying and secure job with . . . many benefits.” Plaintiff claims that the statement was a privileged communication under the statute, and was therefore inadmissible.
Section 1314(d)(1) provides in relevant part:
Except as otherwise provided in this chapter, information obtained from any employing unit or individual in the administration of this chapter, and determinations as to the benefit rights of any individual shall be held confidential and shall not be disclosed or open to public inspection in any manner revealing the individual’s or employing unit’s identity, nor be admissible in evidence in any action or proceeding other than one arising out of this chapter. . . .
21 V.S.A. § 1314(d)(1) (emphasis added). The purpose behind this section is to encourage full, free and honest reporting to the Vermont Department of Employment and Training by protecting the identities and statements of both employers and employees. Cf. Hinojosa v. Joslyn Corp., 635 N.E.2d 546, 547 (Ill. App. Ct. 1994) (state laws prohibiting disclosure of unemployment compensation are meant to advance the administration of unemployment compensation laws by encouraging complete and accurate reporting from claimants and their employers); Simpson v. Oil Transfer Corp., 75 F. Supp. 819, 822 (N.D.N.Y. 1948) (law may only be properly administered when interpreted so as to encourage full, free and truthful reports from both employer and employee).
Plaintiff cites to cases from other jurisdictions enforcing the confidentiality of unemployment information. These cases, unlike this case, involved either former employees or employers as defendants in litigation, who used the privilege as a shield against civil and criminal liability. See id. (holding that statements cannot be used as basis for [353]*353an action for libel); Goggins v. Hoddes, 265 A.2d 302 (D.C. 1970) (action for libel); Hinojosa, 635 N.E.2d at 547 (confirming that privilege applies to defendant employers as well as employees); People v. Ellis, 470 N.E.2d 524, 526 (Ill. App. Ct. 1984) (holding that statements cannot be used as basis for criminal liability); Ohio Civil Rights Comm’n v. Campbell, 345 N.E.2d 438, 440-42 (Ohio Ct. App. 1975) (holding that statements cannot be used in support of civil rights charges).
Here, plaintiff is not using the privilege as a defense to a civil or criminal charge, but as a means of precluding relevant evidence from being introduced in a proceeding initiated by him. To hold that such statements are protected under this situation would do nothing to further the purpose of full, free and honest reporting, but might enable litigants to unfairly secure more than they deserve by bringing collateral litigation. We hold that by bringing this action and putting his reasons for leaving Kaytee at issue, plaintiff waived any protection he may have had under 21 V.S.A. § 1314(d)(1) with respect to statements made by him to the Vermont Department of Employment and Training. See Mattison v. Poulen, 134 Vt. 158, 163, 353 A.2d 327, 329-30 (1976) (applying same principle to doctor/patient privilege under 12 V.S.A. § 1612). Plaintiff cannot in one breath claim protection from disclosure under 21 V.S.A. § 1314(d)(1) and in another bring an action for damages putting the content of those statements directly at issue. To do so would be to make the privilege not merely a shield, but a sword as well. See State v. Valley, 153 Vt. 380, 395, 571 A.2d 579, 586-87 (1989).
II.
Plaintiff’s final two arguments both pertain to his negligence claim. On the first day of trial, defendant brought a motion for judgment on the pleadings under V.R.C.P. 12(b)(6), requesting that the court dismiss plaintiff’s negligence claim for failing to state a valid claim. Defendant argued that the Vermont Occupational Health and Safety Act preempted any common law right of action, including negligence, for “whistleblowing.” Plaintiff contended that the negligent supervision claim was a tort claim, and not brought under VOSHA. Plaintiff did not elucidate how the negligent supervision claim was based on the common law. The court deferred ruling on defendant’s motion to dismiss.
Midway through trial, the court sought clarification of plaintiff’s negligent supervision claim. After reviewing plaintiff’s pleadings and [354]*354requests for jury instructions, the court expressed its understanding that the negligent supervision action was based on an intentional or constructive discharge or discrimination claim, i.e., that management wrongfully allowed a violation of the VOSHA statute to occur. Counsel for plaintiff initially agreed with the court’s description of the claim and stated that the negligent supervision “caused discrimination or discharge.” The court, however, indicated that if the tort of negligent supervision was being raised, plaintiff must produce evidence of a wrong done to him that was different than the statutory violation alleged in Count I of his complaint. Plaintiff then pointed to evidence of verbal and physical abuse.1 The court reminded counsel that verbal abuse is not a tort and that assault was not raised in plaintiff’s complaint. The trial continued.
At the close of plaintiff’s case, defendant reasserted its argument regarding plaintiff’s negligence claim in a motion for judgment as a matter of law under V.R.C.P. 50(a). Plaintiff responded with a motion under V.R.C.P. 15(b) to amend the complaint to allege a battering by his supervisors, that the employer negligently allowed to happen. Defendant objected.
Plaintiff did not seek to amend the allegations that comprised Count II of the complaint but merely sought to add an averment to the body of the complaint claiming a battery. At trial, plaintiff’s testimony concerning the offensive touching was as follows. With regard to the incident that occurred when plaintiff went into his supervisor’s office to get ear plugs, plaintiff testified that the supervisor “came right towards me and he bumped me in the chest against the door that was right behind me. I reached up to the file cabinet, grabbed a handful of ear plugs and left.” Plaintiff further testified that “it wasn’t painful or anything, but it was scary.” The second [355]*355incident with this supervisor happened when plaintiff went to open a garage door for ventilation. He testified that the supervisor “put his hand on my shoulder, pushing me away.” Plaintiff made no claim of harm resulting from this incident. Finally, plaintiff claimed that another supervisory employee “raised his hand at me” after plaintiff continued to reopen a garage door for ventilation that the other employee apparently wanted closed because of the cold weather. In this instance, there was no claim of any contact between the two men and no claim of any harm resulting.
In assessing plaintiff’s motion to amend under V.R.C.P. 15(b), the court reasoned that, because the amendment came so late in the proceedings, it was unfair to require defendant to shift focus and defend a new claim for negligent supervision based on a battery. Further, the court opined that plaintiff had failed to prove that defendant knew or should have known about the violent propensities of the supervisor.2 The court simultaneously denied plaintiff’s motion to amend and granted defendant’s motion for judgment as a matter of law on the negligent supervision claim as pleaded.
A denial of a motion to amend pleadings under V.R.C.P. 15 is reviewed only for an abuse of discretion. See Brown v. Whitcomb, 150 Vt. 106, 108-09, 550 A.2d 1, 3 (1988). Under V.R.C.P. 15(b), issues not raised by pleadings, but tried with the implied consent of the parties, are treated as if they had been raised by the pleadings. See V.R.C.P. 15(b). We have previously stated that, in order to find implied consent to an unpleaded issue, it must appear that both parties understood that evidence was introduced to prove the unpleaded issue. See Vineyard Brands, Inc. v. Oak Knoll Cellar, 155 Vt. 473, 485, 587 A.2d 77, 83-84 (1990); 6A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1493, at 19-20 (1990) (implied consent seems to depend on whether parties recognize that issue not presented by [356]*356pleadings entered case at trial; if not, there is no consent and amendment not allowed).
A review of the record indicates that defendant did not interpret, nor should it reasonably have interpreted, plaintiffs Count II to set forth a claim of negligent supervision by defendant of its supervisors on the basis of battery. During the presentation of his case at trial, plaintiff continued to assert that the negligent supervision claim resulted in discrimination, not a touching. In response to plaintiff’s motion to amend, defendant argued that if, in fact, plaintiff had tried the claim of negligent supervision outside the context of 21 V.S.A. § 231 during trial, a claim based on a battery, defendant would have retained experts and called witnesses to assess whether plaintiff had suffered any emotional or physical harm. Further, even with the offered amendment to include a battery, defendant credibly professed confusion as to what plaintiff was pleading in Count II.
Under the circumstances, defendant did not impliedly consent to try the claim of negligent supervision resulting in a battery. The mere mention in the complaint of some of the alleged retaliatory actions of the co-workers that plaintiff claimed resulted in a constructive discharge was insufficient to put defendant on notice that the claim of negligent supervision was based on anything other than a violation of 21 V.S.A. § 231. Given the early notice by the court of the tenuous validity of Count II, plaintiff’s continuing reliance on a claim of discrimination as the basis of Count II, the timing of the motion to amend, and the fact that only with the motion to amend did plaintiff clearly articulate a claim for negligent supervision based on a resulting battery, it was not an abuse of discretion to deny the motion to amend the complaint.
III.
Plaintiff next contends that the court erred in granting defendant’s motion for judgment as a matter of law on plaintiff’s negligent supervision claim.
A claim of negligent supervision is addressed by § 213 of the Restatement (Second) of Agency, which provides:
A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless... in the employment of improper persons or instrumentalities in work involving [357]*357risk of harm to others: in the supervision of the activity; or ... in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.
Restatement (Second) of Agency § 213 (1958). Pursuant to § 213, liability exists only if all the requirements of an action of tort for negligence exist. See Brueckner v. Norwich Unv., 169 Vt. 118, 126-27, 730 A.2d 1086, 1093 (1999). In the case at bar, plaintiff had to prove that: (1) the employer had a duty to forbid or prevent negligent or other tortious conduct by persons upon its premises; (2) the employer breached that duty; (3) such a breach was the proximate cause of plaintiff’s injury; and (4) there was actual loss or damage as a result of the injury.
Thus, the tort of negligent supervision must include as an element an underlying tort or wrongful act committed by the employee. A wrongful act may well be a tort, but not necessarily. If the act of the employee is contrary to a fundamental and well-defined public policy as evidenced by existing statutory law, it is sufficient to sustain the cause of action. See Miller v. Wal-Mart Stores, Inc., 580 N.W.2d 233, 239 (Wis. 1998). In the case at bar, based on the pleadings, the wrongful act underlying the claim of negligent supervision is discrimination and retaliation resulting in constructive discharge. Like the trial judge, we fail to see a distinction between Count I and Count II.
In Count I, plaintiff claimed that the actions of defendant, by and through the actions of the co-workers, were in retaliation for plaintiff’s protected activities and thus a violation of 21 V.S.A. § 231(a). In Count II, plaintiff alleged that the employer had a duty to comply with the health and safety laws of the State of Vermont, including the prohibition against discrimination of an employee who files a VOSHA complaint, and that the employer breached that duty by failing to supervise its employees to prevent “the abusive, hostile and discriminatory conduct of its employees towards Plaintiff specified in Count I above.” As a result of “the negligence and discriminatory conduct of the Defendant,” plaintiff claimed damages, “including loss of back and front pay, lost employment opportunities, pain and suffering, emotional and physical distress, anguish and anxiety.” Thus, plaintiff’s claim in Count II is that Kaytec negligently failed to supervise its employees who retaliated against plaintiff for making a complaint to VOSHA, causing plaintiff to be constructively discharged and suffer damages.
[358]*358The trial court ruled that, without an amendment to the cause of action in Count II alleging negligent supervision resulting in a battery, Count I — wherein plaintiff claimed that defendant discriminated against him in violation of 21 V.S.A. § 231(a) — subsumed Count II. We agree. Because Count II presented the same claim of discrimination as set forth in Count I, it was not error for the court to grant judgment as a matter of law on Count II. See V.R.C.P. 50(a) (court may grant motion for judgment as a matter of law against party if claim cannot be maintained under controlling law.)
Nor was the claim of damages, including “pain and suffering, emotional and physical distress, anguish and anxiety,” sufficient to infuse Count II with an action premised upon a battery. First, the court agreed that damages for emotional distress were available to plaintiff under Count I, and so charged the jury. Second, as noted above, there was no evidence of any pain or suffering, physical or emotional, as a result of any physical battery against plaintiff. Plaintiff’s testimony of alleged retaliatory actions taken against him by co-workers focused primarily on numerous incidents of ostracism, verbal abuse and ridicule. The alleged batteries were obviously not the factual centerpiece of the claim for relief for constructive discharge under 21 V.S.A. § 231. Viewing the evidence as a whole, the incidents of offensive touching were offered to support the claim of discrimination, not as evidence of a battery.
The complaint did not plead, nor did the evidence support, a claim of negligent supervision based on an underlying tort of battery. There was only one cause of action properly pleaded and actually litigated, and it was described in Count I.
Affirmed.