A recent decision of the Federal Court of Canada has confirmed
that employees can be awarded aggravated damages for mental
distress as a result of unreasonable disciplinary action that falls
short of dismissal.
In Gatien v. Attorney General of Canada,1
the employee had been employed in the federal public service for
over 35 years with a clean disciplinary record. However, following
an incident in which she was physically assaulted by one of her
colleagues, the employee constructed a barricade in order to
prevent her assailant from reentering the workplace. The employee
commenced a stress leave as a result of these incidents and, when
she returned, received a 10-day disciplinary suspension for having
constructed the barricade. The employee returned to work after
serving the suspension, but her psychological issues persisted.
The employee subsequently filed a grievance that referenced a
letter from her psychologist stating that the major source of the
employee's problems was "not the assault itself so much as
her employer's refusal to recognize the harm that was done to
her and to protect her from further harm in the workplace."
The employee sought an appeal of the disciplinary suspension and
$100,000 in damages for mental distress.
Public Service Labour Relations Board
The Public Service Labour Relations Board (the tribunal
responsible for administering the collective bargaining and
grievance adjudication systems in the federal public service) found
that the disciplinary suspension was excessive, and reduced the
penalty to an oral reprimand. On the subject of damages, however,
the Board opined that damages are not normally awarded for
suspensions because there is no permanent loss of employment and
lost monies can be recovered. The Board also stated that despite
the excessive nature of the discipline, there were no grounds for
an award of damages because there was no "separate actionable
course of conduct" (i.e., something other than the suspension
that warranted damages for mental distress).
On appeal, the Federal Court noted that the jurisprudence
regarding damages for mental distress has been in constant flux.
However, since the Supreme Court of Canada's decision in
Honda Canada Inc v. Keays,2 damages for mental
distress no longer require an independent actionable wrong. In
other words, employees do not need to show that there has been a
separate course of conduct – "something extra"
– that warrants damages for mental distress in order to be
entitled to them. In this regard, damages for mental distress are
different than "punitive damages," which generally
require the presence of a separate cause of action in order to be
awarded (e.g., conducting a dismissal in a manner designed to
disparage the employee).
The Federal Court also noted that while Honda was
decided in the context of a wrongful dismissal complaint, the
Supreme Court's reasoning could also be extended to
disciplinary actions that fall short of dismissal. Given that the
employee had provided medical evidence suggesting that the
suspension could have caused her mental suffering and anguish, the
Federal Court directed the Board to redetermine the issue of
damages for mental distress, this time by using the proper legal
The ability to discipline employees is a key tool in every
employer's toolkit, and can be essential to maintaining a safe
and efficient workplace. However, the decision to implement
discipline should not be taken lightly. Therefore, employers are
well advised to consider the following steps before disciplining
investigation. Hastily drawn conclusions can be the demise
of any disciplinary action. Investigate allegations of workplace
misconduct in a fair and objective manner, and always give the
employee under investigation an opportunity to state his or her
side of the case.
issues. Workplace misconduct is not always a simple matter
of cause and effect. For example, if an employee under
investigation provides bona fide evidence of extenuating medical
circumstances, consider whether the disciplinary action should be
modified as a result.
Disciplinary action must be measured and consistent. It should not
be implemented in a vacuum. In other words, make sure that the
punishment fits the crime in every case.
1 Gatien v. Attorney General of Canada, 2015 FC
2 Honda Canada Inc v. Keays, 2008 SCC
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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