In Doyle v Zochem Inc et al ( 2016 CarswellOnt 19295 ) Justice Belleghem awarded 10 months notice to a 48 year old female Plant Manager and Health & Safety Coordinator with 9 years seniority.
However he also awarded moral or Honda damages of $60,000 for the following actions of the Employer :
- She was fired 5 days after making a sexual harassment complaint against her male boss ( Rogers) , who was critical to the running of the organization.
- The Employer conducted a meaningless investigation led by an Executive who had no training or experience in human rights issues and whose sole purpose was to clear the harasser.
- The Employer wanted to replace her with a male so as to avoid any gender issues in the future.
- The Employer tried in vain to find performance issues to justify the termination, even though in the end they did the termination on a without cause basis.
- The Employer tried to rely on after acquired cause, which failed.
- Even though the Plaintiff had been told that she would be given a chance to improve her performance, the decision to terminate her had already been made one month prior to this discussion.
- The Employer failed to use progressive discipline.
- Knowing that the Plaintiff suffered from clinical depression, the Employer showed a lack of empathy when the Plaintiff cried at a meeting. The female executive told her to ” stop being so sensitive ” and that ” Leaving a meeting in tears would cause her to lose respect “.
- The termination meeting was ” cold and brusque.’ She was not permitted to retrieve her own belongings, although her male counterpart, who was also terminated at the same time , was permitted to do this. She was not given the option of leaving through the office or the factory as they did not trust her.
- The termination offer of 6 months was a take it or leave it offer. If it was not accepted only the ESA minimums would be paid out. No explanation of how the amounts were calculated was included. In fact they only paid the 8 weeks termination pay at first and only paid the 9 weeks severance pay some weeks later. The release contained a release of all her human rights claims, thus the sexual harassment complaints would ” evaporate”. She would have to give up her STD rights . No ROE was provided. Her pension entitlement letter was late by a year.
- The Employer denied her STD improperly even after their own doctor confirmed her disability. The same Executive who conducted the improper and biased investigation also took on the role of the claims adjudicator of the Plaintiff’s STD claim, for which she had no training. Ironically, because the Employer self insured the STD plan, any payment that they would have made under the STD plan would have acted as a credit towards their severance obligations under the common law.
The Plaintiff also received human rights damages of $25,000 because :
- The investigation was done in one day .
- They used an untrained investigator.
- They failed to implement sensitivity training as recommended by their independent consultant.
- They did not take the matter seriously other than as “it relates to the singling out of Doyle as a candidate for termination and replacement by a male, as the means to overcome the “problem,” rather than having management confront Rogers as Doyle had done, to remedy the situation. Management’s failure left Rogers to implement his own solution, — a kind of “work to rule,” — that merely made Doyle’s plight even worse.
- Simply relying on the information that the harassment had stopped and not continue the investigation was not sufficient .
- In order to avoid the problem of future sexual harassment claims by a female supervisor in an all male environment, the Employer decided to fire the only female manger and replace her with males. This is how they solved their ” gender problem”.
Many of the grounds for the moral damages claim are well founded. However the judges’ concerns about the terms of the offer as set out in paragraph 10 of this blog require some comment.
Oh yeah, it was an OFFER!
I thought that settlement privilege meant that a Court could not even look at an unaccepted offer, let alone determine that the fact that an offer was made could be a ground for moral damages. By the way, most employer offers are presented as take it or leave it basis and require a release.
Instead of focusing on the offers that the parties make, the Court should focus only on the parties actions. In this case the Court could have said
“Because you only paid out the ESA minimums when you knew that she was entitled to much more, I am awarding moral damages as this is an example of the bad faith involved in using “hardball tactics ” as set out by the Supreme Court of Canada in Wallace v United Grain Growers Ltd ( 1997 (3) S.C.R. 701 at para 108). If the Employer felt that 6 months notice was the proper amount, then they should have paid out 6 months notice. To do otherwise is simply an attempt to starve out the plaintiff and force him to accept a payment of less than his common law entitlement. This type of Employer action is not to be encouraged.”