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. A prime example of employer misconduct for failing to accommodate and providing reasonable notice is the case of Strudwick v Applied Consumer & Clinical Evaluations Inc.
A hard–working and dedicated employee, Ms. Strudwick worked for the defendant–employer for almost sixteen years beginning in 1995. Her duties involved data entry and instructing recruiting staff. The employer, a mid–size private corporation, was in the business of recruiting people to partake in focus groups. In 2010, the employee lost her hearing due to what doctors believed was a virus. As part of her effort to let her disability affect her work as little as possible, she requested a list of accommodations from her employer. The employee asked to have the Canadian Hearing Society attend her workplace to determine necessary accommodations, important instructions provided to her in print, to bring a hearing dog to work, to reverse the direction of her desk so she could see people approaching, to use TTY equipment and some other inexpensive accommodations.
Every request she asked for—including those accommodations which she offered to pay for—was denied.
The employee was also subjected to a hostile work environment in which she was constantly isolated and belittled following the loss of her hearing. One of her supervisors asked on multiple occasions why she would not just quit because she could go on disability. Ms. Strudwick's termination occurred after a voluntary employee Toastmaster's Club meeting, during which she did not speak on one of the prepared topics. After being yelled at in front of several employees for her "stunt" by the general manager, she was fired for insubordination and wilful misconduct. The general manager yelled at her to sign a waiver offering three months' notice while covering the body of the document. When she refused to sign it, he escorted her off the premises.
Immediately following her termination, the employee attempted to find another job without success. In September 2014, she was able to find part–time employment but only for a few days per month. The employee also had difficulty receiving her outstanding pay from the employer and since her record of employment stated she was terminated for insubordination and wilful misconduct, she was unable to receive employment insurance for a period of time. Medical evidence indicated the employee developed an adjustment disorder with anxiety and a depressed mood arising from the manner of dismissal.
The employee sought payment of her wages until age 65 or 8 years and 5 months' notice. While the judge agreed that existing case law did not place an upper limit on reasonable notice, he fixed reasonable notice for the employee at 24 months. The employer's "horrendous conduct" in the manner of termination warranted a higher award. The judge also referenced Wallace v United Grain Growers Ltd as a ground for increasing the notice period due to the employer's misconduct with the employee's record of employment, which deliberately made it more difficult for her to find a new job.
In total, the employee was awarded payment in lieu of notice totaling nearly $50,000 plus approximately $6,000 in lost benefits.
Human rights violation
The employer was also penalized because of its refusal to make reasonable accommodations for the employee after she went deaf, despite her repeated requests. While the range of damages for injury to a person's dignity, feelings and self–respect can vary, the judge award $20,000 in damages. This assessment was along the middle to upper–end of the spectrum for damages of this kind.
Infliction of mental distress
Under this head of damages, the judge was cautious to avoid awarding the employee double recovery for her losses. The three–part test for this award of damages is outlined in many cases, but here the recent decision of Boucher v Wal-Mart Canada Corp. was cited. It was clear to the judge in this case that the conduct of the employee's supervisors was (1) flagrant and outrageous, (2) calculated to cause harm to the employee and (3) that the employee suffered from a visible and provable illness as a result. Medical evidence indicated that treatment for the adjustment disorder would cost $18,984 and the judge awarded this full amount. No aggravated damages were awarded as the judge believed this would amount to double recovery.
Punitive damages are intended to condemn the actions of the employer and are not considered compensatory. As a long line of case law tells us, including the landmark decision Whiten v Pilot Insurance Co., these damages are very much the exception rather than the rule. They are awarded if and only if all other penalties awarded are inadequate to achieve the objectives of retribution, deterrence and denunciation. This case was one of those rare circumstances where the judge awarded punitive damages in the amount of $15,000 as a result of the employer's harsh and demeaning treatment which persisted for months prior to and after termination.
This case highlights a number of important lessons for employers:
- Accommodation in the workplace is the expectation, not the exception. Employers need to understand their obligations to their employees under the Ontario Human Rights Code.
- Courts do not only look at the role of the employee or the length of service in determining wrongful dismissal damages. Depending on the manner of dismissal, employers open themselves up to many types of damages and often the amount can be higher than it would have been had the employer just paid reasonable notice in the first place. This dismissal resulted in an award of approximately $155,000.
- This is another example of why it is important to respond promptly to legal action. In this case, the employer never filed a statement of defence which resulted in the employee receiving default judgment. There was another wrongful dismissal case where the employee was able to obtain default judgment for the same reason (see Silvera v Olympia Jewellery Corporation).
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