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Wallace & Bad Faith & Moral & Mental Distress Damages

Presentation: "The Law on Workplace Investigations: An Update on Key Developments"

I presented a paper on The Law on Workplace Investigations: An Update on Key
Developments
today at the BC "Employment Law Conference 2010" Continuing Legal Education (CLE). The paper can be found at the bottom of this post. The topics I covered were:

  1. Does an Employer Have a Common Law Duty to Provide the Employee with a Fair Hearing/Conduct an Investigation?
  2. What Exposure to Liability/Damages Does an Employer Face for Failing to Properly Conduct an Investigation?
  3. Conducting the Investigation
  4. The Use of Lawyers as Expert Witnesses on Workplace Investigations
  5. Recovery of Costs Associated With Investigating Criminal Wrongdoing
  6. What Duties do Employees Have in Relation to Workplace Investigations?
  7. Privilege Concerns and Workplace Investigations

The last time I presented at the Employment Law CLE - in 2006 - my topic was Reference Letters.

"Charge to the Jury" on awarding aggravated damages in Alberta wrongful dismissal case

Jurisdiction: - Alberta
Sector: - Retail Trade

In Elgert v. Home Hardware Stores Limited, 2010 ABQB 220 - this is further to my previous two posts - the judge also recited his Charge to the Jury on the issue of aggravated damages at para. 62:

On aggravated damages, the Charge to the Jury reflected an employer's obligation of good faith and fair dealing and the recognition that when an employment relationship ruptures, the employee is at his most vulnerable and in most need of protection. This was described in my Charge to the Jury at pages 19 - 20 which reads:-  read more »

Alberta jury awards almost $1 million in damages to employee dismissed for sexual harassment

The case of Elgert v. Home Hardware Stores Limited, 2010 ABQB 73 (CanLII), concerned a senior employee in a management position was dismissed for just cause based on alleged sexually harassment and insubordination. At the time, he had worked for Home Hardware for almost 17 years and was over the age of 50.

The alleged incidents occurred in late 2001/early2002 at the Home Hardware distribution centre in Wetaskiwin, an hour's drive from Edmonton.

The first complainant alleged that the Plaintiff, Mr. Elgert, pushed her into a dark storage room, pushed her up against a table, held her hands down and wiggled his body between her legs.

The second compliant alleged that a few months later while she was cleaning a first aid room in the warehouse, the Plaintiff entered the room, turned off the light and shut the door. He then bumped her backwards until she fell onto a cot. He laid on top of her, and lingered there.

One of the complainants was the daughter of the head of the distribution centre.  read more »

Employer to pay $20,000 in punitive damages for not fully investigating allegations before dismissing for just cause

The employer in Nishina v. Azuma Foods (Canada ) Co. Ltd., 2010 BCSC 502, was ordered to pay $20,000 in punitive damages for dismissing an employee for just cause without properly investigating the allegations of misconduct.  

The case is also of interest in that the court addressed:

  • the contractual force of workplace policy handbooks; and
  • the degree to which different cultural norms - in this case, the importance of an apology in Japanese culture - will impact on the just cause analysis.

Background 

The employer was a Japanese company with operations in California and BC. It produced Japanese ready-to-eat frozen food products.

The employee was a Japanese citizen.  At the time of her dismissal, she was 43 years old, had 6 years, four months service and was employed as a quality control associate. She earned approximately $52,000 per year.     read more »

Unionized employee awarded over $500,000 in total damages for bad faith dismissal

Jurisdiction: - Ontario
Sector: - Transportation

The Canadian labour and employment law community has taken notice of the decision in Greater Toronto Airports Authority and Public Service Alliance of Canada, Local 0004 (No. GV-008-04, O.B. Shime, QC, February 24, 2010), much the same way it did of:

In Greater Toronto, the arbitrator awarded a 47 year-old unionized employee over $500,000 in total damages because the employer had acted unreasonably and in bad faith in terminating her employment.  read more »

The Top 10 Canadian court cases on wrongful dismissal and employment law

For an upcoming audio conference, Lancaster House has listed what it believes are the Top 10 Canadian cases (actually 13) on wrongful dismissal and employment law. In no particular order, it appears, the cases and the issues they address are:  read more »

BC Court of Appeal overturns award of $100,000 in punitive damages to apprentice employee

In Marchen v. Dams Ford Lincoln Sales Ltd., 2010 BCCA 29, the BC Court of Appeal:

  1. overturned the trial judge's award of $100,000 in punitive damages;
  2. upheld the trial judge's award of $25,000 in consequential damages;
  3. upheld the trial judge's decision to not award moral damages; and    
  4. remitted the matter back to the BC Supreme Court to determine the notice period.

This appears to the second written employment law decision issued by the BC Court of Appeal in 2010. The first was Davidson v. Tahtsa Timber Ltd., 2010 BCCA 12, which dealt with a procedural matter.

Background  read more »

Employee’s treatment for drug addiction/fragile health factored into calculation of reasonable notice period

In Pereira v. The Business Depot Ltd., 2009 BCSC 1178, the court factored in the employee's recent release from a drug addiction treatment centre, and his vulnerable state of health generally, in determining the reasonable notice period.

Background  

The employee started working at Staples in 1997, after being recruited from another company. He was eventually promoted to general manager of the Nanaimo location.

Prior to June 2003, he was regarded as a good performer. However, starting at this time his professional conduct took a dramatic turn, as was repeatedly late for work, sometimes would not show up at all or would leave mid day for extended periods.  The employee eventually advised his district manager that he was depressed, fatigued and very unwell.  read more »

48 year-old middle manager with 21 months service awarded 9 month notice period

Jurisdiction: - British Columbia

In Mackie v. West Coast Engineering Group Ltd., 2009 BCSC 1775, the 48 year-old middle manager with 21 months service and an annual base salary of $57,500, was awarded a notice period of nine months.

Notice Period

The court noted that the law is clear that a dismissed employee cannot be compensated in damages for the loss of a job or for the pain and distress that follows as a result of the dismissal. The court also stated that the "unique" factor relating to the impact of the dismissal on the employee's family was not one to be given much weight in determining the length of the notice period.

That said, the manner in which the employee was dismissed and the impact it had on him and his family were undoubtedly what led to the court to award a notice period of nine months, which was at the high end of what the employee was seeking. Specifically:  read more »