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A decision from the Ontario Superior Court of Justice last week contains some of the most disturbing termination facts I have seen in some time. Quite simply, it is a case study on how not to treat an employee with a disability – or any employee for that matter – and how not to terminate someone’s employment. The case, Strudwick v Applied Consumer & Clinical Evaluations Inc. 2015 ONSC 3408, details what the Court called the “horrendous” manner in which a long-time employee was treated by her employer.[i]
The plaintiff was 56 years old at the time of her termination. She worked in data entry and earned approximately $22,000 a year. About a year prior to her termination, the plaintiff became deaf, and her evidence was that her employer’s attitude towards her became unconscionable. She said that she was constantly belittled, humiliated and isolated. Moreover, she made a number of accommodation requests, all of which were refused by her employer. This included having the Canadian Hearing Society attend her place of employment and determine what optimal accommodations were required; having important verbal instructions and information emailed or provided to her in print; bringing a hearing dog to the workplace (the owner who was not disabled, often brought his own dogs into the office); reversing the direction of her desk to permit her to see people entering the office or approaching; the purchase and use of TTY equipment or the installation of a voice carry-over telephone (which she offered to purchase on her own); the installation of a visual fire alarm at her desk which the plaintiff offered to purchase herself; assigning a person to notify her if the fire alarm went off; and continuing use of a vibrating pager given to her by the Canadian Hearing Society to test or an alternative flashing light model. When the plaintiff told her supervisor that she needed to reschedule medical appointments on short notice, she was told “Why don’t you just quit? You can go on disability”.
The termination arose as a result of the plaintiff’s participation in the Toastmasters Club, which was a voluntary group of employees that met in the workplace. The Club was encouraged by the defendant. The plaintiff had joined the club before she was deaf. On this occasion, she chose not to make a presentation. The next day, she was confronted by the General Manger of the defendant and in front of a large group of her co-workers was yelled at and called a “goddamned fool”. A short time later, the General Manager called her into his office where she was terminated for insubordination and wilful misconduct as a result of the “goddamned” stunt at the Toastmasters Club the previous day
The plaintiff was given a termination letter, and a cheque representing three months’ pay. The General Manager also gave her an acknowledgement and waiver and yelled at her to sign it. When she refused, she was not provided the cheque and she was told to get out of the premises. She was escorted to her desk while the General Manager watched her gather her belongings, in full view of her colleagues.
Adding insult to injury, the plaintiff did not receive outstanding pay for work performed until Labour Community Services of Peel Region intervened. Because the defendant submitted a Record of Employment to Employment Services which said that the plaintiff had been terminated for insubordination and wilful misconduct, her employment insurance benefits were delayed. The defendant also delayed the litigation.
Referencing the employer’s “horrendous conduct”, and in view of the “totality of the circumstances” Mr. Justice Dow awarded the plaintiff 24 months of notice. Moreover, as the plaintiff suffered injuries to her “dignity, feelings and self-respect”, which was substantiated by medical evidence, she was awarded a further $20,000 for the defendant’s breach of the Human Rights Code. In addition, the judge concluded that the defendant’s conduct caused the plaintiff to develop an adjustment disorder which required psychological treatment. As the evidence was that this treatment would cost the plaintiff just shy of $19,000, this too was part of the award to her for the intentional infliction of mental distress. Finally, in describing the defendant’s conduct towards the plaintiff as being “deliberate and intended to make the plaintiff quit”, “persistent” as well as acknowledging the power imbalance between the parties, the judge ordered the defendant to pay the plaintiff $15,000 in punitive damages.
The case comes on the heels of another decision from the Ontario Superior Court in which a similarly mistreated employee was awarded over $300,000 as a result of the actions of her employer. Like this decision, in Silvera v. Olympia Jewellery Corporation 2015 ONSC 3760 (a case we wrote about last month) counsel for the plaintiff successfully incorporated a claim for damages as a result of a breach of the Human Rights Code and obtained $30,000 in damages on this account, in addition to wrongful dismissal damages.
About the Author: Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.
[i] The employer did not defend the action, so the decision was a default judgment.