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Difference between revisions of "Employment Law Issues (9:V)"
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Employment Law Issues (9:V) (view source)
Revision as of 17:41, 12 August 2019
, 17:41, 12 August 2019no edit summary
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Courts can award aggravated damages if the employer acted unfairly or in bad faith when dismissing the employee, and the employee can prove that they suffered harm as a result of the manner of dismissal. | Courts can award aggravated damages if the employer acted unfairly or in bad faith when dismissing the employee, and the employee can prove that they suffered harm as a result of the manner of dismissal. | ||
The loss must arise as a result of the manner of dismissal, and not due to the dismissal itself. | The loss must arise as a result of the manner of dismissal, and not due to the dismissal itself. | ||
An employee should be encouraged to obtain medical evidence such as a doctor’s report connecting this manner of dismissal to a personal injury. For example, the doctor’s report might document the employee’s depression, anxiety, or other mental harm. It may be helpful to have a doctor testify in court in order to present a solid case for aggravated damages. However, an employee can provide his or her own testimony regarding an injury, without medical corroboration, and a court can still consider whether to award aggravated damages. See Lau v. Royal Bank of Canada, 2017 BCCA 253. If the employee did not suffer documented harm, see section V.C.13.b: Punitive Damages below. | |||
Prior to the | The basis for these additional damages is a breach of the implied term of an employment contract that employers will act in good faith in the manner of dismissal. In Honda Canada Inc v Keays, 2008 SCC 39, the Supreme Court of Canada held that any such additional award must be compensatory and must be based on the actual loss or damage suffered by the employee, which can include mental distress stemming from the manner of dismissal. However, normal distress and hurt feelings arising from the dismissal itself are not grounds for additional damages. | ||
Prior to the Honda v Keays decision, damages awarded where the employer had acted in bad faith were assessed by simply extending the notice period to which the employee would otherwise be entitled. This practice was based on the Supreme Court of Canada’s decision in Wallace v United Grain Growers Ltd, [1997] 3 SCR 701, and the awards were informally known as “Wallace Damages”. Following the Honda v Keays decision, the practice of assessing damages by extending the notice period is no longer to be used. Now, a claimant must prove what actual losses or mental harm the employee incurred, and the employee is then compensated for those actual losses or mental distress. See Strudwick v Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520. | |||
What constitutes “bad faith” is for the courts to decide, and has in the past centred on deception and dishonesty. Mere “peremptory” treatment is not sufficient: see, for example, Bureau v KPMG Quality Registrar Inc, [1999] NSJ No. 261 (NSCA). Sexual harassment has been held not to give rise to additional damages (Chiang v Kejo Holdings Ltd, 2005 BCSC 414). See, however, Sulz v Minister of Public Safety and Solicitor General, 2006 BCCA 582, where punitive damages were awarded for sexually harassing conduct in the employment context. | |||
'''(1) Bad Faith Performance of Contracts''' | '''(1) Bad Faith Performance of Contracts''' | ||
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*iv) where an employer promised an employee he would keep his job after a merger, although he knew differently (''Bryde v Liberty Mutual'', 2002 BCSC 606). In one case, a response by employer’s counsel to an employee’s counsel containing an allegation of just cause where none existed was held not to constitute bad faith (''Nahnychuk v Elite Retail Solutions Inc'', 2004 BCSC 746). However, in another province, a letter threatening to allege just cause where none existed, for the purpose of forcing a settlement, even though just cause was not plead in court, was held to give rise to additional damages (''Squires v Corner Brook Pulp and Paper Ltd'', [1999] NJ No 146 (Nfld CA)); and, | *iv) where an employer promised an employee he would keep his job after a merger, although he knew differently (''Bryde v Liberty Mutual'', 2002 BCSC 606). In one case, a response by employer’s counsel to an employee’s counsel containing an allegation of just cause where none existed was held not to constitute bad faith (''Nahnychuk v Elite Retail Solutions Inc'', 2004 BCSC 746). However, in another province, a letter threatening to allege just cause where none existed, for the purpose of forcing a settlement, even though just cause was not plead in court, was held to give rise to additional damages (''Squires v Corner Brook Pulp and Paper Ltd'', [1999] NJ No 146 (Nfld CA)); and, | ||
*v) where an employer has made false accusations about the employee at the time of dismissal. See Price v 481530 BC Ltd et al, 2016 BCSC 1940, where an employer dismissed an employee on the basis of false allegations of dishonesty contributing to the creation of a hostile work environment and ultimately his constructive dismissal. | *v) where an employer has made false accusations about the employee at the time of dismissal. See Price v 481530 BC Ltd et al, 2016 BCSC 1940, where an employer dismissed an employee on the basis of false allegations of dishonesty contributing to the creation of a hostile work environment and ultimately his constructive dismissal. | ||
*vi) Where an employer produced false evidence of the employee’s absence without leave in order to argue just cause for dismissal and only offered ESA minimum severance (Bailey v. Service Corporation International (Canada) ULC, 2018 BCSC 235)). | |||
'''(2) Good Faith Performance of Contracts''' | '''(2) Good Faith Performance of Contracts''' | ||
