‘I was devastated and humiliated’
Tribunal won’t allow harassed employee to sue her workplace
After surviving uterine cancer, the last thing Fallsview Hotel housekeeper Jan Morningstar expected was for her illness’s symptoms to be weaponized against her at work.
Yet that is exactly what she says happened in a years-long harassment ordeal in which she was relentlessly taunted for
“having an unpleasant odour,” sprayed with Lysol by her coworkers, teased for supposed incontinence, and asked by managers if she had “considered using feminine products such as douches, sprays, pads or baby powder.”
Now, Morningstar is the subject of an unusual tribunal decision that bars her from suing her employer — even though she said a toxic environment enabled by her managers forced her out of a much-needed job.
“I was devastated and humiliated,” she said. “I wanted to be heard.”
At issue is to what extent injured workers can pursue their employer in court over employment violations. The province’s Workplace Safety and Insurance Board (WSIB) was established as a no-fault system: workers give up their right to sue their employer over a workplace injury in exchange for fair access to benefits.
In most cases, the board’s independent tribunal has ruled workers can still sue over other wrongdoings. But it recently decided Morningstar, 60, must give up her constructive dismissal lawsuit and instead apply for workers’ compensation benefits for chronic mental stress.
“It’s an outrageous and absurd decision,” said Jessica Ponting of the Toronto-based legal clinic Industrial Accident Victims
Group of Ontario. “It suggests that employers can intentionally harass workers into quitting, and so long as they develop a psychological injury from the harassment, they are off the hook for wrongful dismissal.”
Morningstar’s former employer Fallsview Hotel operates in Niagara Falls under the Hilton name, but is independently owned. In a statement to the Star, general manager Paul Ford said he could not comment on specific details of Morningstar’s experiences at the company “out of respect for the private and sensitive nature of the claims in this case.”
Ford said the workers’ compensation system — not court — is “the proper forum” for Morningstar’s claims because the board’s new chronic mental stress policy is “specifically meant to ensure that workers are provided appropriate coverage for injuries.”
“We are concerned that (Morningstar’s) rights and privacy are being lost in the manoeuvres of lawyers acting on their own agenda, and undermining successful worker advocacy for enhanced protection for future claims of this nature,” said Ford.
Morningstar’s ordeal began in 2016, according to a recent court application challenging the tribunal’s ruling. One day at work, she noticed an unusual smell and raised it with coworkers. Shortly after, they began suggesting she was the source — and, on one occasion, sprayed her with Lysol.
Bodily discharge with an unusual odour is a symptom of uterine cancer. Morningstar told her colleagues and booked a doctor’s appointment, terrified she was sick again.
“One of the most horrendous aspects of this was that Jan believed her cancer returned,” said her lawyer, Brendan Mccutchen of Toronto-based labour law firm Wright Henry LLP. “And instead of getting the support of her co-workers, she was met with harassment.”
Luckily, Morningstar was still physically healthy. But the bullying did not stop.
Morningstar’s supposed odour remained a subject of ridicule and rumour-mongering among her colleagues, according to her court application.
Co-workers suggested she was incontinent and repeatedly left stained or moist towels on her chair.
When she approached her managers and human resources about the bullying, her court challenge says they did nothing. Instead, managers “reinforced her colleagues’ conduct,” including questioning her about whether she showered every day, washed her uniform, and used douches or pads.
In his statement to the Star, Ford said the company took “the health and safety of our employees very seriously,” and “promptly” conducted an internal investigation into her
“There is a significant danger that (Morningstar’s) case could be used to stop other workers pursuing wrongful dismissal.”
BRENDAN MCCUTCHEN LABOUR LAWYER
complaints. That investigation took place in 2017, but “did not substantiate” Morningstar’s concerns, according to her court application.
The report recommended that she be required to sit in a designated chair at work that became known as “the Jan chair,” which she felt only isolated her further.
Morningstar clung on to her job, despite what she describes as the repeated humiliation. She was a divorced single parent, and needed the income.
But after watching Morningstar break down in tears, her doctor instructed her to take a sick leave.
“The doctor just said ‘enough is enough,’ ” recalled Morningstar.
Morningstar went to the Ministry of Labour, which ordered an independent investigation into what happened at her workplace.
The ensuing report found five colleagues had indeed harassed her. But little was done about the findings, said Morningstar.
The five workers were ordered to undergo sensitivity training, but Morningstar was told she had to continue reporting to the same manager she said bullied her.
By early 2018, she decided she could “no longer endure the toxic workplace and resigned,” her court application says, citing Hilton’s “failure to acknowledge her harassment and take effective measures to ensure a safe working environment.”
She also decided to sue her employer for constructive dismissal and damages for violating provincial employment and occupational safety laws.
But Hilton challenged the lawsuit by appealing to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). The hotel argued she had to go through the workers’ compensation system rather than the courts. In a decision it acknowledged was an “exception” to the rule, the tribunal
agreed with Hilton.
The tribunal said Morningstar was essentially forced out of her job because of a workplace injury — in her case, chronic mental stress. As a result, she had to file a compensation claim and could not take her employer to court for an issue that was “inextricably” linked to her injury.
But in numerous other cases, the tribunal has ruled injured workers can still pursue wrongful dismissal suits against their employer.
That is because these lawsuits remedy a problem outside the WSIB’S scope. Workers’ compensation benefits are for personal injuries. Constructive dismissal suits arise out of a breach in contract after a worker is forced to resign without termination notice, which they are entitled to under provincial employment laws.
Conflating the two issues means workers can’t access their full legal entitlements, said Mccutchen. It could be particularly problematic for those who experienced harassment on the job, he added.
Workers won the right to claim chronic mental stress benefits at the WSIB in 2018, after years of advocacy from legal clinics and criticism from the former chair of the appeals tribunal itself. But the claims must meet specific criteria set out in the board’s policy — and over the past two years, 94 per cent of cases have been rejected, according to WSIB statistics.
The tribunal that shut down Morningstar's lawsuit operates independently of the WSIB; a spokesperson for the board said workers with chronic mental stress claims are encouraged to submit them and access support.
By quashing dismissal suits like Morningstar’s, Mccutchen said the tribunal forces workers to rely solely on a chronic mental stress policy that “isn’t particularly worker-friendly.”
“There is a significant danger that Jan’s case could be used to stop other workers pursuing wrongful dismissal,” he said.
“It puts Ontario out of step with other provinces,” he added. “It’s really a notably bad decision.”
Morningstar said she has no issue filing a WSIB claim — but the prospect of dropping her dismissal suit is a blow.
“I want the closure,” she said. “I need it to move forward.”