High Damage for Wrongful Dismissal
Reserved for serious wrongful dismissal cases. It’s the conduct of an Employer at termination, and post termination that determines whether aggravated and punitive damages should be allowed in a wrongful dismissal case, where the conduct at termination and post termination are abusive, egregious, high-handed, demeaning.
Extraordinary / Aggravated / Moral Damage In Wrongful Dismissal Cases
Moral damages, also referred to as aggravated damages, and Wallace damages. It a general misconception that these damages are awarded due to the grotesque nature of office harassment, sexual harassment and discrimination. But time after time after time, the Court has clearly stated that moral damages have very little to do with the illegal acts of harassment, discrimination itself, as the damage awarded for these tortious conducts have already taken the grotesque nature of the wrongful conducts into account.
The Court, quite consistently, have found that these moral damages are only to be awarded in wrongful dismissal claims against an employer who engaged in conduct during the course of an employee’s dismissal that was “unfair” or “in bad faith” and caused the employee mental distress that went beyond the “normal distress and hurt feelings resulting from a dismissal.” Moral damages are compensatory in nature, in contrast to punitive damages which are intended to punish the employer. Moral damages are available when the injury or loss to the employee is foreseeable as a result of the employer’s conduct in the manner of dismissal.
Punitive Damage In Wrongful Dismissal Cases
The Supreme Court has stated in Whiten v Pilot Insurance Company, 2002 SCC 18 that Punitive damages are very much the exception rather than the rule, imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour. Punitive damages are generally given only where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence and denunciation. Their purpose is not to compensate the plaintiff, but to give a defendant his or her just desert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community's collective condemnation (denunciation) of what has happened.
So, in a nutshell, if you are an employer, DO investigate into employee’s complaint into harassment and discrimination, and MOST definitely make appropriate accommodation, and NEVER terminate an employee in retaliation of a valid complaints against Occupational Health and Safety Act (OHSA) violation and Human Rights Code violation. And if a wrongful termination case has been filed against you, as an employer, don’t delay the process, do everything in your power to expedite the process, and try to reach a reasonable settlement with the employee whenever possible.
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