An employment law claim may result from several causes, such as alleged discrimination or wrongful dismissal. Claims may be resolved through litigation in the court system or dispute settlement in an administrative tribunal like the Human Rights Tribunal of Ontario.
Regardless of the forum, in certain circumstances, additional damages beyond those necessary for compensation (for example, damages in lieu of a reasonable notice period or for lost wages) might be awarded. This article takes a non-exhaustive look at some types of additional damages that may be available in employment law claims.
Additional damages in employment law court litigation
This section briefly describes aggravated damages for bad faith dismissals and punitive damages for reprehensible conduct.
Bad faith in the manner of dismissal of an employee
Employers have an obligation of good faith in the manner of dismissal of an employee. An employer cannot engage in conduct that is “unfair or is in bad faith by being…untruthful, misleading or unduly insensitive”. If an employee successfully argues in a wrongful dismissal action that the employer has engaged in such conduct, the court may award the employee extra damages, referred to as moral, exemplary or aggravated damages.
In the recent decision of the Court of Appeal for Ontario in Humphrey v Mene Inc., a wrongfully dismissed employee sought aggravated damages for mental distress. The Court awarded aggravated damages in the amount of $50,000 after finding that her termination was precipitated by a request for a salary increase and that the employer did not act with good faith in alleging that it had just cause for termination. It also found that the employer subjected her to a toxic work environment and communicated with other employees and clients about her termination before they spoke to her.
Punitive damages for reprehensible conduct
Parties to litigation can also be awarded punitive damages to punish the other party for reprehensible conduct and a “marked departure from ordinary standards of decent behaviour.” These may be awarded when required to punish a defendant for meeting the objectives of retribution, deterrence and denunciation.
The employee in Humphrey v Mene Inc. was also awarded $25,000 in punitive damages. The Court found that the employer’s litigation conduct warranted an award of punitive damages. Specifically, it “dredged the waters looking for anything” to make the employee look bad and was either untruthful when it claimed it had material to support a just cause termination, or it failed to preserve the documents in circumstances where the plaintiff’s lawyer explicitly asked it to do so. There were also inappropriate and irrelevant references to the employee’s personal life in the employer’s evidence.
Damages awarded by administrative tribunals
Administrative tribunals are empowered by statute to order certain remedies. These may include damages beyond, for example, compensation for lost wages. In this section, we briefly look at some damages that may be awarded by tribunals in the context of an employment-related discrimination claim.
Damages for injury to dignity, feelings and self-respect or pain and suffering
Under the Ontario Human Rights Code, the Human Rights Tribunal of Ontario is able to direct a party that infringed a right to compensate the other party for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
When awarding damages, the Tribunal considers humiliation, hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant and the seriousness ofthe offensive treatment.
For claims by federally regulated employees before the Canadian Human Rights Tribunal, the Canadian Human Rights Act allows the Tribunal to compensate the victim for any pain and suffering experienced as a result of the discriminatory practice. This can be up to $20,000.
As we mentioned in a recent article, in the case of Luckman v Bell Canada, the Tribunal awarded the victim $15,000 in compensation for pain and suffering. It noted that Bell’s conduct in terminating an employee who was recovering from cancer surgery in circumstances where it made no inquiries as to whether his disability continued to affect his ability to work was a serious transgression of the Act. The complainant was forced to endure the humiliation of being fired and being forced to find a new job on top of all his problems.
Special damages for wilful or reckless conduct
In addition, the Canadian Human Rights Tribunal is able to award special damages if the defendant has engaged in the discriminatory practice wilfully or recklessly. This can also be up to $20,000.
These special damages are punitive and intended to provide a deterrent and discourage those who deliberately discriminate. A finding of wilfulness requires an intention to discriminate and to infringe a person’s rights, whereas recklessness usually denotes acts that disregard or show indifference to the consequences, such that the conduct is done wantonly or needlessly.
Again, in Luckman v Bell Canada, the Tribunal awarded the complainant $15,000 for Bell’s reckless conduct. While the employer did not intend to discriminate, Bell was reckless in not considering whether firing an employee recovering from cancer surgery might be discriminatory and “single-minded” in pursuing sales.
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