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Employer duty to investigate complaints or face financial consequences

A person wrongfully dismissed from employment can seek severance in addition to pay in lieu of notice. Payment can include a claim for moral damages, and a recent Ontario Court of Appeal decision affirms that moral damages can be a significant sum.

Moral damages flow from the manner of dismissal, such as unfair or bad conduct by the employer when dismissing the employee. It is important to remember that moral damages are an exception, not the rule, because normal distress and hurt feelings that ordinarily come with being terminated from a job are not compensable at law.

A court can also order damages for breaches of the Human Rights Code, so long as the reasons for awarding the human rights damages and the moral damages are not the same.

In the case of Doyle v Zochem Inc. et al (2016 ONSC 3188), Doyle worked at Zochem for nine years. In the period leading up to Doyle's termination, she was subject to sexual harassment by her boss, a key employee to Zochem. Finally, Doyle made a harassment complaint against him, and Zochem conducted a cursory investigation. In the course of the investigation by an executive with no training or experience in human rights issues, the investigator told Doyle to stop being emotional, and that crying made her look weak. Doyle was let go five days after making her complaint, and was offered a take it or leave it termination package. The court found that the termination package not only attempted to deny the employee's common law entitlements on termination but also denied her of her statutory severance amounts.

$60,000 in moral damages was awarded for a variety of reasons, including:

·         Doyle was dismissed 5 days after making a complaint;

·         Zochem conducted a cursory investigation, led by someone with no experience in human rights issues;

·         Zochem's investigation was compounded by a "tunnel vision" approach with little or no regard for its effect on Doyle;

·         Doyle was told a few days before her termination that her job was not in jeopardy;

·         The termination was "cold and brusque."  Doyle was not allowed to retrieve her own belongings, although her male counterpart, who was also terminated at the same time, was permitted to do this;

·         No record of employment was provided;

·         Doyle's termination offer of 6 months was a take it or leave it offer. The amounts provided in the offer were not explained; and

·         The release provided contained a release of all Doyle's human rights claims. This means her sexual harassment complaint would "evaporate" and she would have to give up her short-term disability rights.

 

An additional $25,000 in human rights damages was awarded to Doyle because of the cursory investigation conducted by an untrained investigator. Zochem also failed to take the matter seriously and decided to fire the only female manager and replace her with a male. Zochem denied Doyle short-term disability improperly, even after their doctor confirmed her disability.

The Ontario Court of Appeal confirmed that $60,000 in moral damages and $25,000 in human rights damages was appropriate.

This case is a reminder to employers of their duty to carefully and thoroughly address complaints of workplace harassment. Employers should have detailed policies and procedures for reporting complaints and carrying out investigations for all of its employees.

To reach the author of this blog, Jean-Francois Lalonde, email jflalonde@viceandhunter.ca or call 613.232.5773 x 246.

Jean-Francois Lalonde is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Vice & Hunter LLP. He has extensive experience practicing in the areas of employment law and is a part-time professor at La Cité Collégiale teaching Employment Law for Paralegals.

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