Management Lawyers

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In a recent decision involving constructive dismissal and &ldquo;reprehensible&rdquo; conduct by an employer, <a href="/uploads/ckeditor/attachment_files/25/2011onca651.pdf?1322491909" target="_blank">Qubti v Reprodux Ltd</a>., the Court of Appeal denied an employee damages for intentional infliction of nervous shock as well as aggravated and punitive damages.</p>

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The employee complained that he had experienced constant verbal harassment at work during the course of his seven year employment. The verbal abuse experienced by the employee included nicknames and comments regarding his sexual preferences, mental capacity and Palestinian background. Although the trial judge found the comments to be &ldquo;reprehensible&rdquo;, in the final analysis, the trial judge held that they were not severe enough to constitute a separate actionable wrong in the form of intentional infliction of nervous shock.</p>

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She also found that the employee was not entitled to aggravated damages because, although she found the language to be abusive, she was not persuaded that the mental suffering felt by the plaintiff was caused by the employer&rsquo;s conduct. The trial judge found that other factors in the employee&rsquo;s personal life also caused him stress and anxiety which was confirmed by the medical evidence provided.&nbsp; The employee was not entitled to punitive damages as the trail judge found the acts of the employer were not so malicious and outrageous to deserve punishment on their own.</p>

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The Court of Appeal upheld the decision of the trial judge which found that the employee had been constructively dismissed and confirmed the trial judge&rsquo;s decision that the employee was not entitled to damages for intentional infliction of nervous shock or aggravated and punitive damages.</p>

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The determination in this case appears difficult to reconcile based on the facts.&nbsp;&nbsp; One would normally expect that a finding of &ldquo;reprehensible conduct&rdquo; would be sufficient for an award of aggravated damages.&nbsp; However, it appears upon a close reading of the decision, the plaintiff was less than forthright in his evidence, exaggerated his claim in many respects, and likely lost credibility in the eyes of the trial judge.&nbsp; As the threshold for such damages is very high in a civil law suit, the judge was able to make such a finding.&nbsp; However, we expect that if the plaintiff had filed a complaint with the applicable human rights commission based on these facts, such conduct would likely have attracted some significant damages.</p>

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So while the case confirms that the threshold for such damages is quite high, we would caution employers in reading this case not to expect that they can avoid such claims where their conduct is determined to be &ldquo;reprehensible&rdquo; as this case may be somewhat of an anomaly.&nbsp; The case is perhaps more noteworthy as an indication of how important it is to maintain credibility before a judge or trier of fact, lest your claim or defence to same may be significantly impaired.</p>