KERRY RECEIVED NO “PROCEDURAL FAIRNESS” IN
THE PERIOD LEADING UP TO HIS DISMISSAL AS
THE COMPANY IGNORED HIS VERSION OF EVENTS
AND OTHER EVIDENCE THAT SUPPORTED IT.
Unfortunately for Kerry, when Victor confronted him, Kerry
was not given an opportunity to respond to Victor’s criticisms.
Instead, Kerry was suspended with pay and escorted from the fa-cility.
During his suspension, he attempted to communicate his
version of events in writing and by phone. The company did not
respond to him. In the intervening period, he needed to take a
stress-related medical leave of absence.
When his leave ended, Kerry received a letter from Sena advis-ing
him that his employment was being terminated immediately
for cause due to his failure to follow safety procedures and his su-pervisor’s
instructions. Kerry again attempted to explain events to
the company. Sena responded by suggesting that it had conducted
an investigation and found that Kerry had engaged in misconduct.
Kerry sued the company claiming pay in lieu of notice of ter-mination
as well as aggravated damages for Sena’s mistreatment
of him. In a lengthy Statement of Defence, the company attempt-ed
to justify Kerry’s dismissal for cause. Nevertheless, as the trial
opened in May 2017, approximately five years after Kerry’s lawsuit
started, the company withdrew its allegations.
The court held that Kerry would be entitled to aggravated damag-es
if he could demonstrate that the manner in which he was dismissed
caused mental distress that was within the contemplation of the par-ties.
Citing the Supreme Court of Canada’s seminal decision in Keays
v. Honda Canada Inc., the court underscored examples of conduct re-sulting
in compensable damages, including “attacking an employee’s
reputation by declarations made at the time of dismissal, misrepre-sentation
regarding the reason for the decision, or dismissal meant to
deprive an employee of a pension benefit or other right…”
The court awarded Kerry aggravated damages amounting to
$75,000 (in addition to six months’ pay in lieu of common law
notice of termination). In support of its decision, the court relied
upon the following findings:
1. Kerry received no “procedural fairness” in the period leading
up to his dismissal as the company ignored his version of
events and other evidence that supported it.
2. The evidence suggested that Sena decided to dismiss Kerry
within days of his suspension and this supported the
conclusion that the investigation “was at best incompetent
and unfair, and at worst a sham.”
3. Kerry’s EI benefits were delayed as a result of Sena’s
4. Sena’s mistreatment of Kerry affected his relationship with
his spouse and caused him to be “depressed, miserable and
uninterested in activities and relationships with family
5. Kerry lived in small town and was publicly humiliated
as rumours concerning his dismissal circulated in the
6. Sena advanced its allegations of cause for Kerry’s dismissal
for an extended period of time.
Notably, Kerry’s medical evidence was not strong and includ-ed
only his own testimony, an unchallenged letter from his wife
and two doctor’s notes. No physician testified. In that context, his
case serves as a warning to employers that courts will be sympa-thetic
to employees claiming non-monetary losses after they have
been dismissed for just cause without a fair hearing. Although case
law suggests that investigations into misconduct do not need to
be perfect, one-sided investigations and untenable allegations that
cause reputational harm or mental distress will result in an award
of damages. Sena learned this the hard way. n
Rich Appiah is principal at Appiah Law Employment and
Ryszard Stelmachowicz / Shutterstock.com
14 ❚ DECEMBER 2017 ❚ HR PROFESSIONAL