Date: 2007
Author: Daniel A. Lublin
Publication: Metro

“Garden variety” dismissals no longer customary

Workplace disputes are no longer “garden variety.”  Enter creative employee-side lawyers and their clients’ willingness to challenge their ex-employers in court and demanding more severance pay is only one of the employee’s options.  But the facts have not changed; rather the courts’ ability to remedy alleged wrongs has expanded.
Bad faith damages: Aside from typical severance-like damages for wrongful dismissal, the most often awarded “add-on” damages are for an employer’s bad faith behaviour at the time of an employee’s termination.  The fact of an employee’s dismissal does not merit additional compensation.  Rather, courts have a wide-ranging ability to punish employers for bad faith treatment of employees based on the manner of dismissal.  With such a broad spectrum of potentially bad faith behaviour, most employment lawsuits allege these damages as a matter of course.
Inducements to resign: Employers who recruit employees based on promises or assurances are not immune from liability if they dismiss those employees shortly thereafter.  When U.S.-based Blue Pumpkin Software Inc.’s relentless pursuit of sales all-star Melissa Antidormi ended with her termination six months after she had resigned from another job, the court responded by awarding her ten months’ salary as damages. Her entitlement in the absence of inducement might have been only been weeks.
Punitive damages: Awarded to deter employers from engaging in particularly harsh treatment of employees.  While they are often claimed, only the most extraordinary behaviour merits these awards.  In a recent Ontario case, a former Honda employee with chronic fatigue syndrome received $100,000 when the judge found that he was discriminated against and harassed.
Aggravated damages: Awarded to compensate for intangible injuries, such as mental distress or where it can be shown that there was a wrong committed that was separate from the dismissal itself and aggravated the employee’s harm as a result.
Future wage loss: In a recent column, I wrote about former RCMP constable Nancy Sulz who was awarded $950,000 as damages, including prospective wages lost, for prolonged harassment by her commanding officer that left her suffering from such severe depression that she was unlikely to ever be able to work again.  After the British Columbia Court of Appeal agreed with the finding, and the quantum, now she will never have to.
Cost sanctions: Legal fees usually follow the result of a lawsuit.  That is, the victor’s legal fees are partially paid for by the losing party.  But extraordinary circumstances permit a judge to deviate from this rule.  In a recent Ontario case, the judge awarded the victorious employee substantial indemnity of his legal costs, implying that such a result was necessary to punish the employer’s conduct.
With precedent-setting cases awarding these damages, as well as for invasion of privacy, intentional infliction of mental suffering, defamation, loss of reputation, breach of fiduciary duty and even negligence, garden variety dismissals now flirt with becoming significant lawsuits.