January 14, 2016
A recent case shows how an employer’s conduct both during employment and in the manner of dismissal may be compensated – and deterred – in court proceedings.
The Employer company carried on business as a recruiter for focus groups. For over 15½ years the Employee worked with the Employer, initially in an administrative support role, and eventually in a more responsible role instructing recruiting staff. The Employee’s income was approximately $22,000 per year, and she received a modest benefits package.
In the Fall of 2010, the Employee became deaf. From that point on, the Employee alleged she was subjected to unconscionable conduct, culminating in her dismissal about 6 months later. The Employee made numerous requests for accommodation for her hearing disability, most at no cost to the Employer, and was refused every time. Her direct supervisor required the Employee to reschedule medical appointments on short notice, and encouraged her to “quit and go on disability.”
The Employer dismissed the Employee for just cause, ostensibly due to an incident in which she declined to participate in a voluntary, after hours Toastmasters club hosted by the Employer. The Employer failed to pay outstanding wages until a legal clinic intervened on the Employee’s behalf, and delayed her entitlement to receive employment insurance by recording that she had been dismissed for wilful misconduct on her record of employment.
The Employee sued. The Employer failed to serve and file a statement of defence and was ultimately noted in default. A refusal to set aside default judgment was affirmed by the Ontario Court of Appeal, and leave to appeal to the Supreme Court of Canada was refused.
On the motion for default judgment, the Court did not hesitate to award the Employee pay in lieu of notice of 24 months, with recognition for salary increases, fringe benefits, and gross-up for taxes, in recognition of the Employer’s “horrendous conduct.” The Court also awarded $20,000 in damages for discrimination due to the Employee’s disability, for injuries to her dignity, feelings and self-respect under Ontario’s Human Rights Code, and $18,000 in damages for infliction of mental distress (reflecting the projected cost for psychological treatment). Most significantly, the Court awarded $15,000 in punitive damages, to penalize the Employer’s harsh conduct and signify the Court’s admonishment.