Written on behalf of Peter McSherry
The Ontario Court of Appeal recently upheld an award of $60,000 that a lower court granted to an employee for the manner in which she had been dismissed after she made a complaint of sexual harassment.
The employee in question, Ms. Doyle, had worked for the employer, Zochem Inc. (a manufacturer of zinc oxide), for approximately nine years at the time of her termination. Throughout her tenure at Zochem, Ms. Doyle was the plant supervisor and health and safety coordinator. She was the only woman working in the plant. Ms. Doyle required the cooperation of Mr. Rogers, the plant maintenance manager, whom she considered irreplaceable.
However, Mr. Rogers repeatedly made inappropriate overtures towards Ms. Doyle, including:
- By staring at her breasts and purporting to take a photo of them;
- By telling her that one of the independent contractors employed at the plant had an “anaconda in his pants” and that she should date him;
- By informing her that her “girls” (i.e- breasts) looked good;
- By referring to their genitals as “little friends”;
- By repeatedly informing her that she needed to “get laid”, or needed “a little pounding”, and by asking her if she was “getting any”.
During a production meeting in July 2011, Ms. Doyle raised several legitimate plant safety concerns. Mr. Rogers and another colleague (who were both aware that Ms. Doyle was going to be terminated) ignored Ms. Doyle’s concerns, and demeaned and belittled her in front of the other employees at the meeting. Ms. Doyle left the meeting in tears. Unaware that a termination letter was already on the way for her, she informed the assistant general manager, Ms. Wrench, about the sexual harassment to which she had been subject. Ms. Wrench made what the lower Court characterized as a “cursory” investigation of the complaint and met with Mr. Rogers; however, Ms. Doyle was ultimately not given a chance to respond.
Ms. Doyle was terminated approximately five days after the production meeting. She subsequently filed a wrongful dismissal complaint.
The Original Trial Decision
Justice Bellinghem, the original trial judge, found that the most significant reason for Ms. Doyle’s termination had been her gender and the sexual harassment complaint she had filed.
There was considerable evidence presented at trial about the impact that the termination had had on Ms. Doyle. She had testified that she felt betrayed, abused, sad, and upset. She had been placed on medication anxiety after experiencing constant shaking, migraines, chest pains, and sleep disturbances. A doctor at the Centre for Addiction and Mental Health (CAMH) had recommended that she be admitted to the facility. Ms. Doyle did not follow through on the recommendation, but was placed under the care of a psychiatrist. She was diagnosed with major depressive disorder and anxiety.
Justice Bellinghem awarded Ms. Doyle general damages equal to 10 months’ salary, $25,000 for sexual harassment, and $60,000 in moral damages.
The employer appealed only the moral damages award, and argued that $20,000 as moral damages would have been more appropriate, on the basis that, among other things, Justice Belleghem had considered factors that had been irrelevant to the termination;
The Appeal Decision
On appeal, the Court found disagreed that the moral damages award ought to be reduced, and found that the award had been justified.
The Court recognized many of the lower courts findings, including the fact that:
- Wrench had “mangled the termination process” by, among other thing, recruiting employees to “dig up dirt” about Ms. Doyle in order to discredit her and justify the termination;
- Wrench’s dealings with Ms. Doyle had been “completely disingenuous” when she assured Ms. Doyle that her job was not in jeopardy when, in fact, the decision to terminate had already been made;
- Wrench’s response to the sexual harassment complaint was “insensitive to the point of verging on cruel”;
- The termination was “cold and brusque”;
- A third party HR consultant who had been brought in to facilitate the termination informed Ms. Doyle that she was “being irresponsible” with her allegations as Mr. Rogers’ reputation was on the line (with the inference being that Ms. Doyle should abandon her sexual harassment complaint).
Justice Bellinghem had observed that:
This was like rubbing salt into a wound for [Ms.] Doyle. She was being asked to sign off any rights she may have had arising out of her years of harassment, and at the same time, if she chose to do so, add to her pain by doing something to reinstate the reputation of her harasser.
In addition to the foregoing, Ms. Doyle had been pressured to sign a release immediately upon termination, and without being able to consult with legal counsel. Moreover, the record of employment was late, ESA severance was not provided immediately, Ms. Doyle’s direct deposit payments were cancelled, and Ms. Doyle’s pension entitlement was at least one year late.
The Court found that these “most serious aspects of [the employer’s conduct]” had been appropriately considered by the trial judge, and that the moral damages award ought not be reduced.
The employer’s appeal was ultimately dismissed.
If you have been terminated and would like to consult with a knowledgeable and experienced employment lawyer, contact Peter A. McSherry Law Office in Guelph. We can give you the advice and guidance you need during this challenging time, and to help you move forward with your life. Contact us at 519-821-5465 to schedule a consultation.