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Due Care Required in Manner of Termination

18-Apr-17

By Teresa Haykowsky and Chris Lane, Q.C.

On February 15, 2017, Ontario’s Court of Appeal confirmed a $60,000 moral damage award in favour of 9-year employee Melissa Doyle (the only woman working in the zinc oxide plant) against Zochem Inc. which failed to act in good faith in the manner of Doyle’s termination.

Doyle, a Plant Supervisor and Health and Safety Coordinator, was sexually harassed by a work colleague who repeatedly made crude and licentious comments to her. Doyle complained. In response, the company undertook a cursory investigation and failed to give Doyle an opportunity to respond to the harasser’s version of events.

At the time the company had made the decision to fire Doyle. However, they told Doyle her job was not in jeopardy. Doyle’s coworkers, who knew she was to be fired, ignored legitimate safety issues she had raised and demeaned and belittled her, which brought her to tears.

At the termination meeting, the company told Doyle she had been ‘irresponsible’ to the harasser as his reputation was put on the line (the inference being that Doyle should have abandoned her sexual harassment complaint) and pressured her to sign a release on the spot. During the meeting Doyle’s car keys were taken from her purse and her car was brought around without her permission;

Doyle successfully sued the company. She was awarded 10 months’ salary, $25,000 damages for her sexual harassment claim under the Ontario’s Human Rights Code, and $60,000 in moral damages.

The company appealed the amount of the $60,000 moral damages award arguing it should be reduced to $20,000. Ontario’s Court of Appeal disagreed, finding that:

  • The company had ‘mangled the termination process’. They ‘dug up dirt’ to discredit Doyle to justify her termination and created performance reviews to bootstrap the pre-existing decision to fire Doyle.
  • The company’s dealings with Doyle were ‘completely disingenuous'. They assured Doyle her job was safe when in fact the decision to fire her had already been made.
  • The termination had been “cold and brusque”.
  • The company had ‘rubbed salt into a wound’ when they told Doyle the harasser’s reputation was on the line.
  • Doyle had been asked to sign off her rights arising from harassment even though it would be painful for Doyle to reinstate the reputation of her harasser.

The appellate court supported the $60,000 moral damages award because the company had been untruthful, misleading and unduly insensitive in the manner of Doyle’s termination.

Tips and Takeaways

  • Sexual harassment investigations cannot be cursory or biased, a complainant must be given an opportunity to tell their story.
  • Employers should provide proper harassment investigation training to those employees who investigate such claims.
  • Employers have an implied contractual obligation of good faith in the manner of dismissal of an employee. Moral damages will be awarded against an employer which, as a whole, is ‘untruthful, misleading or unduly insensitive’ in the matter of dismissal of an employee.
  • Moral damages are punitive (i.e. compensate for bad faith conduct during dismissal that causes mental distress) whereas human rights damages are remedial (i.e. compensate for the loss of the right to be free from discrimination and sexual harassment at work).
  • Ontario’s human rights legislation allows a court in Ontario to award human rights damages (i.e. breach of human rights legislation). Alberta’s human rights legislation does not contain a similar provision. Therefore, at present, an award for human rights damages would likely not be awarded by Alberta courts.
  • The Government of Alberta is conducting a review of labour legislation. One change being reviewed is the possibility of giving greater powers to the Labour Relations Board to oversee matters arising under legislation such as the Human Rights Act. If such changes are made, it might be possible for human rights cases to be heard by the Labour Relations Board, which would likely have the same powers as the Human Rights Commission to award damages or reinstatement.
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