In OPSEU (Ranger) and Ministry of Community Safety and Correctional Services, The Grievance Settlement Board has awarded the largest amount ever for breach of The Human Rights Code and the collective agreement for harassment, discrimination and poisoned workplace in the sum of $45,000. The Arbitrator previously awarded lost wages and LTIP of $244,242. For failure to accommodate awards were also made in the sum of $35,000 and $18,000. This case demonstrates the principle that damage awards attempt, so far as possible, to restore the dignity interest of the employee and given this is the largest sum ordered yet, there will be no hesitation in doing so.
Why were damages so high for harassment, discrimination and poisoned workplace?
- Uncontroverted medical evidence that the employee suffered anxiety and deep depression at times being suicidal.
- The harassment was profoundly humiliating.
- The employee felt victimized and lost self-respect and transformed to a bitter, distrustful person.
- The harm suffered was foreseeable.
- He lost the work he wanted to do as Correctional Officer and can never return to work in a correctional institution.
- He lost opportunities to advance his career.
- Employer’s breach affected every aspect of both his professional and personal life.
- Impact of delay in investigating employer’s delay in investigating complaint affected employee adversely and made employee sicker.
- Almost no evidence to justify delay.
- Delay to investigate was breach of employer’s duty.
- No case before the arbitrator where a complainant has suffered such extensive harm.
Why were damages so high for failure to accommodate?
- Employer was responsible for poisoned workplace which made employee ill.
- Manulife consultant said that she had never seen an employer so reluctant to return an employee to work.
- Long periods where nothing was done to find the employee a position.
- Two possible positions existed with no attempt to modify either.
- Resulted in serious relapse to employee’s health.
- One manager took a position that employee would not get accommodation until settled harassment grievance.
- Link between litigation and the accommodation process delayed search for a suitable position.
- Employee felt victimized when he could not return to some kind of work; also vulnerable for health and financial reasons.
- Breach was egregious, did great harm and was foreseeable.
- The combination of the harassment, discrimination and not being accommodated for so many years left the employee emotionally crippled, distrustful of everyone and completely crushed.
Lessons for Employers
Employers should ensure under all circumstances that the Human Rights Code is complied with, that in the event of any reported breach that an investigation is promptly done and that the duty to accommodate is treated very seriously. Advance training of all staff on the Human Rights Code and harassment prevention should be regularly performed. Management should be reminded periodically that any breach of the Human Rights Code is unlawful and that if a breach is reported this should be taken seriously and promptly investigated. Further reminders that the duty to accommodate must not be delayed for any reason is essential. As well, accommodation is up to the point of undue hardship so that the employer is expected to suffer hardship is accommodation, but not undue hardship. Employers should seek guidance by experienced Employment Law Counsel to guide them through difficult situations and avoid liability for which huge damage awards could be made.
Lessons for Employees
Employees should be aware that Employers must respect human rights as prescribed in the Human Rights Code and that the employers’ duty to investigate and accommodate are taken very seriously. Huge awards will be made against an employer for their breach. A poisoned workplace may result in injury to dignity, feelings and self-respect for which an employer may be ordered to provide compensation. Employees should consult with experienced Employment Law counsel to review the circumstances surrounding any breach of the Human Rights Code and to receive advice with respect to the employer’s obligations to investigate and accommodate.
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