WRONGFUL DISMISSAL: WHEN THINGS CAN GO WILD
Egregious behaviour can hit a company’s bottom line, writes Howard Levitt.
The manner in which you fire an employee can end up unexpectedly expensive.
Melissa Doyle worked as a plant supervisor and health and safety co-ordinator for Zochem Inc. Within a relatively short time, she began being relentlessly sexually harassed by the maintenance supervisor, Bill Rogers. Despite her repeated attempts to stop him, Rogers’ abuse worsened to the point that Doyle’s mental health was put at risk.
Her formal harassment complaint had no effect. She was terminated instead.
Zochem’s conduct throughout the termination was reprehensible. Employees were instructed to “dig up dirt” on Doyle’s performance to find a way to terminate her for cause. She was specifically told her job was not in jeopardy when, in reality, the ink was already dry on her termination letter.
Another employee had revealed Doyle’s previously undisclosed medical condition to her superiors without her permission. When handed her letter of termination, Doyle was pressured into signing a release of any claims against the employer, without an opportunity to seek independent legal advice, which she had repeatedly requested. Perhaps worst of all, she was coerced into signing the release by the employer who held hostage her severance payment.
Justice Belleghem held that Doyle’s gender and her sexual harassment complaint were the reasons behind her dismissal.
Rather than simply awarding Doyle damages for wrongful dismissal, human rights violations and the legal costs of pursing her case through trial, Justice Belleghem awarded her an additional $60,000 in moral damages for Zochem’s poor conduct leading to the termination, the termination process and post termination conduct (which included having another employee steal her car keys and drive her car to the front door in anticipation of her dismissal).
Zochem appealed the decision, arguing that Doyle was “double dipping” in recovering both human rights damages and moral damages for the same misconduct.
The Ontario Court of Appeal unanimously disagreed, clarifying that moral damages are awarded as a result of the manner of dismissal, where the employer engages in conduct during the course of dismissal that is unfair or is in bad faith and causes mental distress.
Human rights damages, on the other hand, are remedial, compensating for the loss of the right to be free from discrimination and abuse.
As the awards of damages represented different interests in law, albeit for the same conduct, no overlap in damages was found.
As a general rule, employees deserve to be treated with fairness and dignity, especially while being dismissed. Making a termination public or an opportunity to invade an employee’s privacy will not be tolerated. Equally, employees have the right to consult with independent counsel before signing any release and cannot be threatened for choosing to do so. Financial Post
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. Employment Law Hour with Howard Levitt airs Sundays at 1 p.m. on Newstalk 1010 in Toronto.