The Canadian Bar Association
Employment & Labour

Aggravated damages awarded to spa worker in wrongful dismissal

A skincare therapist has been awarded $15,000 in aggravated damages for the bad-faith conduct of her employer in a wrongful dismissal case, says Vancouver employment lawyer Richard Johnson, who represented the woman in the lawsuit.

In addition, the B.C. Supreme Court also ordered the employer to pay eight weeks’ notice as outlined in the woman’s employment contract, says Johnson, an associate with Kent Employment Law.

The case demonstrates that employees are entitled to fair treatment and should be given a chance to improve before dismissal, he tells AdvocateDaily.com. It also shows such legal battles are not reserved for highly paid professionals.

“It can be so meaningful for someone to have their name cleared and feel a sense of justice when they haven't done anything wrong," he says. "This is a much bigger endeavour for someone in my client's position versus a person with the means to litigate to the hilt. From an access to justice point of view, it makes us very proud.”

The plaintiff, who had worked 11 years at the spa from the age of 21, was subject to a review that essentially amounted to a “retroactive search of problems” over the course of her employment history, says Johnson.

Her manager raised potential issues — which were not cause for termination, he notes — and imposed a three-month plan for her to either improve or lose her job.

“A failure to meet minimum performance standards does not necessarily justify dismissal with cause,” the judge wrote in her decision. “Mere dissatisfaction with an employee's job performance does not justify dismissal.”

The employee improved in several areas, but at the end of the day, the employer "wasn't sufficiently satisfied, so they fired her for cause,” Johnson says. The company claimed the three months they had provided her to improve was actually a notice of termination.

Johnson says the court found the case warranted aggravated or bad faith damages. 

As the judge noted in his ruling, the events had a profound effect on the plaintiff. She was emotionally upset throughout her performance reviews and believed she needed to retrain for a new career.

“I am satisfied that the lack of good faith and unfairness exhibited by the company in the manner of dismissal caused emotional distress to the plaintiff that was well beyond the distress from the fact of the dismissal,” the judge wrote.

Johnson says on her first day of work after being hired on the phone the employee signed a contract which indicated she would be provided notice as outlined in the Employment Standards Act. Although case law suggests legal limitations such as severance cannot be imposed after the point of hiring, the judge ruled there was “no certainty of terms.”

“There was a reasonable presumption that severance and some other terms of employment would be discussed after the hiring,” Johnson says. Rather than receiving notice at common law, the woman was awarded contractual damages on dismissal.

Johnson says the ruling provides many lessons for employers, including better ways to coach employees.

“Make the employee aware of concerns, and with candour,” he says. “They must be relatively current concerns — you can’t go back and raise past issues. And when you identify areas to improve, you have to give the employee a fair chance to change and assist them in doing so. 

“You need to give someone a fair shake before you actually terminate their employment if you’re going to rely on cause.”

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