Damages a wake-up call for employers

Court takes dim view of persecution campaign against female worker

A restaurateur was shocked recently when he went on Facebook only to find a video of members of his night shift mooning the camera and each other from behind the counter and via the drive-through window.

Facebook, of course, is the highly popular Internet site. Apparently, the local health inspector, also seemingly a Facebook fan, accessed the mooning video and is now investigating the restaurant, amid allegations of health code violations.

The owner seemed confused as to whether he should terminate the offending employees or not. He should not be.

And employees are not the only ones sometimes in need of a wake-up call. For employers violating the privilege of having human beings work for them, the courts will express appropriate judicial outrage and punish with all the tools available. And rightly so.

In a recent case, a woman worked as a crane operator. During her brief employment, the young woman was sexually assaulted by a senior employee who generated significant business for the employer.

The woman was viewed by the employer as a three-month hire who could be easily replaced.

The senior employee was eventually charged and convicted of the sexual assault and ordered not to come within 500 metres of the woman. This posed a problem for the employer, who wanted to keep the senior employee employed, so the employer moved him to another location. The employer wanted to move the senior employee back to his original location, but could not do so because of the court order.

The employer removed all support for the young woman by firing the human rights officer and her direct supervisor, both of whom had been sympathetic to her cause. They had testified against the senior employee in the sexual assault trial. The employer then hired a friend of the senior employee to directly supervise the woman, whose initial words to her were to “watch your back.”

Moreover, the employer hired a human rights officer described by the court as a “chauvinist pig,” who criticized the young woman because she took too long in the washroom with her “lady issues.”

The persecution by these means lasted three months. Through this process, the court found that the young woman had been “criticized, ostracized and demeaned.” The woman left the workplace and did not return, instead seeking medical treatment for the effects of the persecution.

The court found that the conduct of the employer and the resulting reaction of the woman resulted in a constructive dismissal, and the court awarded damages.

However, it got worse for this employer. The court said the persecution campaign was designed to cause the young woman to “knuckle under,” and characterized the employer’s conduct as “egregious” and a “nasty piece of work.” The court awarded what are known as Wallace damages for that persecution conduct.

Here’s the interesting part: the court awarded approximately six times more in money damages for Wallace damages, than it awarded for the actual wrongful dismissal. The court’s logic was that the course of dismissal included all the time-frame of the three month persecution campaign that led up to the dismissal.

Taking this approach, the court could treat the entire three month period as being within the course of dismissal, and it was due to expanding the course of dismissal to this extent that the court awarded such disproportionately large Wallace damages.
The court then awarded punitive damages, also based on the extended course of dismissal time frame, and based on the wilful choice of the employer to favour the transgressor and persecute the victim.

The behaviour of the employer in question became of such a quality that the court had to condemn it with all the tools available.

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