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Harassed employees now have options

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A former employee successfully sued Xerox in 2000 after proving his manager became “authoritarian, impatient and intolerant” of his work, placing him on probation without justification.





“Moderation is a virtue only in those who are thought to have an alternative.”






Workplace abuse may be obvious, but rarely does it amount to a paid vacation.


Employees faced with a workplace abuser used to visit their doctor for a prescription or a note authorizing a leave of absence. Except in extraordinary cases, employees were bereft of a legal remedy, as courts had little appetite for walking into the workplace and ordering bosses to be nicer to their employees. The reality for most was either leave — or lose — your job.





But the abuser no longer gets to act with legal impunity. Now, equipped with the knowledge that they can sue for significant damages, tormented employees call their lawyers:





Employees who demonstrate that abuse or harassment has made their job objectively intolerable can resign and sue for, at least, a severance package. In 2000, Viren Shaw successfully sued Xerox by proving that his manager became “authoritarian, impatient and intolerant” of his work, placing him on probation without justification. The Ontario Court of Appeal agreed that Shaw was forced to involuntarily resign and awarded him damages for wrongful dismissal.





Where an employee can show he or she was treated with incivility, unfairness or disrespect, and that continued employment was unbearable, that employee may also be able to succeed with legal action. I am even familiar with judgments in which courts have gone as far as to suggest employers have a duty to evaluate their employees’ performance fairly or respond appropriately where a complaint of abuse has been made.





A few months pay, however, hardly makes up for losing one’s job. Recently, former RCMP Const. Nancy Sulz was awarded $950,000 as damages, including prospective wages lost, for prolonged harassment by her commanding officer that left her suffering from such severe depression that she was unlikely to ever be able to work again. After the British Columbia Court of Appeal agreed with the finding, and the quantum, now she will never have to.





If the abuser’s motive was discriminatory, the employee has even more options. In light of recent legislative changes purporting to provide judges with the ability to order expanded remedies for human rights violations, there is no longer a disadvantage to suing in the courts for discrimination and harassment. Moreover, where discrimination was a cause of the abuse, courts historically show sympathy to the employee, translating into increased damages.





Where abuse is accompanied by other independent wrongs, such as intimidation, criminal and sexual harassment, defamation and deceit, employees can leave the employment law microcosm behind and enter the personal injury law forum where extensive damages awards are the norm, not the exception.





But it’s not just the employee’s arsenal to sue for abuse that’s grown; it is also the amount that he or she can claim:





Creative employee-side lawyers have convinced courts to amplify the damage awards for punitive, aggravated and bad faith behaviour. Stir in a modicum of abuse, and an ex-employee can find a pot of gold over the rainbow. In 2003, Susanne Zorn-Smith successfully sued the Bank of Montreal for afflicting her with such unreasonable work demands that, in the words of the trial judge, she simply “stopped functioning.” Zorn-Smith was awarded an extra $15,000 for conduct designed to inflict mental distress, which was, at the time, at the deep end of damage awards. Consider that just two years later, Kevin Keays set the high water mark by receiving $100,000 in punitive damages against Honda Canada.





The abused employee no longer has to hide in a legal box, without a remedy. It appears the pendulum has swung in his or her favour.





Daniel A. Lublin is a Toronto-based employment lawyer. He can be reached at dan@toronto-employmentlawyer.comor you can visit him on the web at www.toronto-employmentlawyer.com.

 
 
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