As we have written before, an employer may generally terminate an employee for any good business reason, as long as it provides the employee with adequate notice of termination (or pay in lieu of notice). Failure to provide adequate notice results in a wrongful dismissal. In addition to awarding damages for wrongful dismissal, courts have the authority to award “aggravated” or “moral” damages, and even “punitive” damages in certain circumstances (see here for some examples). In a recent case from the Ontario Superior Court of Justice, the court awarded $50,000 in aggravated damages due to the employer’s actions with respect to the employee’s workplace harassment complaints, its failure to conduct an investigation, and its failure to take steps to discipline an abusive co-worker.
In Bassanese v German Canadian News Company Limited et al, Ms. Bassanese was a 73-year old female clerk with 19 years of service. She was verbally harassed by a male co-worker on a number of occasions. On April 17, 2018, Ms. Bassanese made a formal written complaint to the president of the company about this co-worker’s conduct. In her complaint, she wrote that she was being constantly harassed, that her co-worker would yell and scream at her and call her an idiot. The president wrote back on the same day, stating that he would refer her complaint to the Human Resources department.
Three weeks later, Ms. Bassanese followed up with the president. The president replied shortly afterwards to indicate that he had brought the issue to HR and that he would take further steps. However, further steps were not taken by either the president or Human Resources. A week later, Ms. Bassanese wrote to the president again, advising that she was at her wit’s end. Still no action was taken.
On June 21, 2018, Ms. Bassanese alleged that the co-worker had slapped her three times. She complained to the managing director, and a police report was filed. Her employment was terminated that same day, without notice.
Ms. Bassanese brought a wrongful dismissal claim against the company and the company, and claimed damages for wrongful dismissal, assault and battery, intentional infliction of mental suffering, aggravated damages and punitive damages. The claim against the co-worker was settled out of court.
The court awarded $129,433.17 as pay in lieu of notice and lost benefits, $15,000 in damages for assault and battery, and $50,000 in aggravated damages, amounting to $194,433.17. With respect to the aggravated damages, the judge noted that aggravated damages are designed to compensate a plaintiff specifically for the “additional harm caused to the plaintiff’s feelings by reprehensible or outrageous conduct on the part of the defendant.”
The judge compared the facts from the case before him with facts pleaded in other cases where aggravated damages had been awarded, and found that the facts before him were less egregious. He identified the central complaint about the dismissal was that the company ignored Ms. Bassanese’s complaint, neglected to investigate the complaint or take steps to address the co-worker’s inappropriate conduct. The judge found that this neglect in the face of Ms. Bassanese’s heightened frustration and anxiety as the work environment became more toxic, warranted aggravated damages.
If you are suffering from workplace harassment or violence, and your complaints are being ignored, you should speak to an employment lawyer. If you would like to speak to a lawyer at the MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.
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