She was the only woman working in the plant. Bill Rogers, the
plant maintenance manager, sexually harassed her.
A few days before her employment was terminated, Rogers
humiliated Doyle in front of other employees, after she raised le-gitimate
safety concerns at the plant. At that point, he knew that
the decision to dismiss her had already been made. When Doyle
reported the sexual harassment to Stephanie Wrench, the as-sistant
general manager, she did a “cursory” investigation of the
complaint and heard from Rogers, but did not give Doyle an op-portunity
to respond. She also assured her that her job was not
in jeopardy, when in fact the decision to dismiss had already been
made. Wrench knew that Doyle suffered from clinical depression.
Within a week, Wrench terminated Doyle’s employment with-out
cause. There was evidence that Doyle endured significant
mental distress as a result of her employer’s bad faith conduct. She
felt “betrayed, abused and upset,” was diagnosed with a major de-pressive
disorder and anxiety, and her application for short-term
disability benefits was denied by her employer without adequate
evidence. Doyle sued for wrongful dismissal and sought general
damages, moral damages, damages for retaliatory discharge and
intentional infliction of mental distress, aggravated damages and
punitive damages. In response, Zochem alleged extortion as after-acquired
cause for dismissal.
HOW DID THE COURTS ANALYZE THE
The trial judge awarded Doyle 10 months of pay as a result of
the wrongful dismissal. In addition, she was awarded $25,000 in
damages for breach of her human rights – the judge found that
her gender and her sexual harassment complaint were likely the
main reasons for the termination, and that the employer had failed
to investigate her complaint properly. Further, she was awarded
$60,000 in moral damages for the employer’s bad faith conduct in
the manner of dismissal. Specifically, the employer misrepresented
to her that her job was not in jeopardy when they had already de-cided
to dismiss her, wrongfully denied her short-term disability
benefits and alleged after-acquired cause without any basis.
The employer appealed the trial judge’s decision, and argued
that the $25,000 award for the breach of her human rights should
be deducted from the $60,000 award of moral damages, as the
same conduct was relied upon for both types of damages. The
Court of Appeal dismissed the appeal and affirmed the decision,
finding that although there was overlap with respect to the con-duct
justifying each damage award, the conduct was not identical
(e.g., an attack on Doyle’s reputation would be a consideration in
the award of moral damages, but not for sexual harassment).
More importantly, the court held that the damages for breach
of human rights and moral damages serve different purposes –
they “vindicate different interests in law.” Specifically, human rights
damages are remedial, not punitive, and compensate for the “in-trinsic
value” of the violation of Code-protected rights: “Such
damages are compensation for loss of the right to be free from
discrimination and the experience of victimization.” On the oth-er
hand, moral damages are awarded for employers’ unfair or bad
faith manner of dismissal that causes the employee mental dis-tress.
Since these two damage awards “vindicate different interests
“EMPLOYERS MUST ENGAGE
IN BEST PRACTICES
TO ENSURE THEY ARE
COMPLYING WITH THEIR
AND MUST TAKE ANY
SERIOUSLY AND PROPERLY
in law, there will be no overlap in the damages awarded although
the same conduct is considered.”
WHY IS THIS SIGNIFICANT?
This decision is significant as it shows that multiple damage
awards may be ordered by relying on the same employer conduct.
In addition, the decision emphasizes that employer conduct relied
upon for an award of moral damages may be conduct that occurs
either before, during or after termination, as long as the conduct is
related to the manner of dismissal.
Importantly, this decision comes after the amendments in the
Ontario Occupational Health and Safety Act, which have expanded
the employer’s obligations with respect to investigating workplace
sexual harassment. Employers must engage in best practices to
ensure they are complying with their legal obligations, and must
take any harassment complaints seriously and properly investigate
Employers and HR professionals would be well advised to
follow these practice tips in order to prevent and respond to work-place
harassment and discrimination:
■■ Policies and processes should be written, communicated,
enforced and updated as needed.
■■ Retain records of harassment and discrimination complaints,
investigation processes and reports.
■■ Act in a timely manner.
■■ Confidentiality should be maintained.
■■ Train your employees.
■■ Investigate complaints properly before taking disciplinary
■■ Communicate findings of the investigation with the parties,
and outline what steps will be taken to resolve the matter.
■■ Ensure a safe work environment free from harassment,
discrimination, and reprisals. n
Nadia Zaman is an associate at Rudner Law. This article originally
appeared as a blog post on Rudner Law’s website and is republished
here with permission.
14 ❚ JANUARY 2018 ❚ HR PROFESSIONAL