Written on behalf of Peter McSherry
In a recent British Columbia wrongful dismissal case, the court took the unusual step of applying the “thin skull rule” in assessing a terminated employee’s aggravated damages.
What Is the Thin Skull Rule?
In a 2001 Supreme Court of Canada decision, the court explained the origin of the rule’s name when it stated:
“Thus, the fact that a victim’s head injuries are aggravated beyond what would normally be expected because of the victim’s unusually thin skull does not relieve a tortfeasor of liability for the full extent of the harm that resulted from his wrongdoing.”
In another decision, the Supreme Court of Canada provided a more expansive explanation of the thin skull rule when it described it as follows:
“[T]he well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.”
The rule has typically been applied by courts in personal injury cases, as well as criminal ones, and essentially means that a defendant must take his victim as he finds him. In other words, if the injured party has a particular physical or mental vulnerability, the person who caused them harm will nonetheless be fully liable, even if an ordinary person would not have suffered such severe consequences.
Employee Terminated Despite Fixed-Term Employment Contract
In the case on review, the employee sued the employer for wrongful dismissal following a short period of employment which started on November 12, 2018, and was terminated on January 28, 2019. The employee submitted that he had been “headhunted” by the employer and promised full-time employment as an engineering manager for a fixed term ending in September 2020. He claimed damages representing the balance of the earnings he would have received throughout that period along with aggravated and punitive damages for bad faith conduct and the insensitive nature of his dismissal.
In response, the employer acknowledged that the project for which the employee was hired was expected to last until September 2020, as was the employee’s employment. However, much to its disappointment, it claimed that the employee turned out not to be a good fit for their team and it decided to terminate his employment by giving him the one-month advance notice expressly provided for in his contract. The employer denied that the employee had a fixed-term contract of employment and further denied that there was any basis for any claim for aggravated or punitive damages.
Employee Seeks Aggravated Damages for Manner of Dismissal
Although the parties presented conflicting evidence relating to the manner in which the employee was dismissed, the court described his termination meeting as follows:
“[The employee] was somewhat callously informed at the meeting that the reasons for his termination “did not matter”…
[W]hen pressed by [the employee] for an explanation, he was informed that he did not have the respect of senior management, that he was neither a competent engineer nor a good manager, that he was embarrassing the company, and that they did not wish to have him associated with the project any further.”
While the court did not find that the employer intended to insult the employee, it accepted the employee’s testimony that he was insulted on both a personal and professional level and felt surprised and shocked at his termination.
Additionally, the court stated:
“I have no hesitation in concluding that the messaging by [the employer] at the January 28, 2019 termination meeting was unduly harsh, insensitive, and, indeed, insulting. It amounted in effect to an attack on [the employee]’s competence, an attack that was all the more hurtful in light of [the employer’s] inducement of [the employee] to leave his previous employment and to join the company’s much more substantial and lucrative undertaking. The termination could have and should have been handled in a much more sophisticated manner.”
Court Awards Aggravated Damages for Mental Distress Under Thin Skull Rule
In addition to finding that the employee had been wrongfully dismissed, the court considered the manner of the employee’s termination in awarding aggravated damages.
The employee claimed that his manner of dismissal had caused him mental distress, for which he was undergoing treatment. In response, the employer argued that the employee’s condition was caused not by the manner of dismissal but rather the fact that he had been unable to find alternate employment since his dismissal.
Citing the principles set out by the Supreme Court of Canada on the assessment of damages and the thin skull rule, the court ultimately found in favour of the employee, stating:
“In this particular case, it is apparent, and I find as a fact, that [the employee] takes great pride in his status as a professional engineer and he is deeply affected by any insult to, or disrespect of, his perceived professional competence. In a manner of speaking, this is his “thin skull”, and the reasons given to him by [the employer] for his dismissal have struck at the core of his self-esteem and are at least one contributory cause, albeit not the only cause, of his serious and prolonged emotional upset and distress….
I have found that [the employee] had certain “thin skull” personality features which made him inordinately susceptible to insult and mental distress and that the manner of his termination was indeed at least one cause, if not the only cause, of the prolonged distress he has since suffered. This is sufficient to affix [the employer] with liability for aggravated damages.”
In the result, the court assessed the aggravated damages to be paid by the employer in the amount of $12,500, and so ordered. The court clarified that the employee would normally be entitled to $25,000, but found that part of the employee’s mental distress had been caused by his lengthy unemployment, for which the employer would not be held liable.
If your employment has been terminated without reasonable notice or severance from your employer, you might have a claim for wrongful dismissal. Even if your employer claims that the notice or severance is reasonable, it pays to check with a highly qualified employment lawyer to ensure that all legal requirements were, in fact, met by your employer. The employment laws are complicated and intertwined. The basis for a claim might exist even if your employer claims to have followed the law.
At Peter A. McSherry Employment Lawyer, I provide each of my clients with a full assessment of his or her case. Disputes in wrongful dismissal claims are usually based on severance pay, benefits and/or the timeliness of the notice. However, if an employer claims or cites misconduct as the cause for dismissal, reasonable notice is not needed. We can discuss the facts of your case. I can help you discover and weigh your options in a straightforward manner with respect for your needs and objectives. I can protect your rights. Call me at 519-821-5465 or contact me by e-mail to schedule a consultation.