Introduction
Being terminated from your job is often a deeply emotional and stressful experience. While it is natural to feel upset or overwhelmed, it’s important to understand that employers are legally bound to treat employees with dignity and fairness during the termination process. Canadian courts have made it clear: how you are dismissed matters. If your employer handles your termination in an unduly harsh or insensitive manner—such as unnecessarily escorting you out the workplace—it could result in legal consequences for them.
Summary
The legal principle of good faith and fair dealing in employment terminations was established by the Supreme Court of Canada in Wallace v. United Grain Growers Ltd. Within the Wallace damages context, we see Lee v. Windermere Manor Ltd., where the Ontario Court of Justice awarded additional damages after Ms. Lee, a long-time employee, was unnecessarily escorted out her workplace upon termination. The Court found no evidence that Ms. Lee posed any threat of disruption or damage to the employer’s business/property, and concluded the employer’s conduct was “callous and insensitive.” The takeaway is clear: if you’re terminated and unnecessarily escorted out of your work premises, you may be entitled to additional compensation for the way your dismissal was handled.
Good Faith & Fair Dealing
It goes without saying that when faced with a termination emotions are high. However, emotions do not negate an employers’ duty to conduct themselves in accordance with the “fair dealing” doctrine articulated in Wallace. Specifically, the Supreme Court of Canada notes at paragraph 95:
…to ensure that employees receive adequate protection, employers ought to be held to an obligation of good faith and fair dealing in the manner of dismissal, the breach of which will be compensated for by adding to the length of the notice period.”
Wallace is clear, employers cannot deviate from their duty of good faith and fair dealing, especially within the context of dismissals, as that is when an employee is most vulnerable.
Lee v Windermere Manor Ltd.
In Lee, the Ontario Court of Justice granted Wallace damages due to the circumstances surrounding Ms. Lee’s termination.
Ms. Lee was employed as a housekeeping supervisor in June 1996, and terminated on December 18, 1999. Ms. Lee’s termination was due to her breach of a policy manual forbidding smoking outside the designated smoking room, justifying a for cause dismissal. Additionally, evidence was lead with respect to Ms. Lee’s “personality conflicts with other staff, insubordination, and problems with” staff relations.
Wallace damages
There were several allegations made with respect to the Plaintiff’s sought Wallace damages. However, the trial Judge dispensed with the majority of the sought damages and focused on Ms. Lee being escorted to the front door following her termination.
The Court outlined the lack of evidence or viable inference regarding Ms. Lee causing a scene following her termination. Materially, Ms. Lee’s mother, who was also employed by the Defendant, was the only person in the lobby. Given the facts, the Court noted a lack of evidence to support a conceivable inference that Ms. Lee would cause a scene. Furthermore, there was no worry that Ms. Lee would damage the Defendant’s property. As result, the Court noted on a balance of probabilities that the escorting was “callous and insensitive treatment that cannot be considered fair dealing.”
Similar damages have been awarded in Pohl v. Hudson’s Bay Company, 2022 ONSC 5230 (CanLII) and Kelowna Flightcraft Air Charter Ltd. v. Buchanan, 2010 BCSC 1650.
In Phol, the Court awarded Mr. Phol moral damages ($45,000.00) due to his employer’s breach of good faith and fair dealing inclusive of his wrongful dismissal and punitive damages ($149,662.50). The Court’s justified the moral damages for four reasons:
- Walking Mr. Pohl out the door was found to be unduly insensitive, as he was a loyal employee for 28-years and was dismissed due to a nation-wide restructuring driven by economic considerations. As such, there was no misconduct and did not warrant the insensitive treatment;
- The employer attempting to mislead Mr. Pohl with respect to a job offer prior to termination, which would have removed his statutory and common law notice entitlements should he have accepted;
- Not paying Mr. Pohl his statutory minimums in a lump sum by the required time as per section 11(5) of the Employment Standards Act, 2000; and
- Mr. Pohl’s employer failed to issue his Record of Employment (“ROE”) within 5-days after the interruption of his employment earnings, in contravention of section 19(3)(i) of the Employment Insurance Regulations SOR/96-332.
Looking to Kelowna, we see that the Supreme Court of British Columbia dismissed the appeal regarding Wallace damages awarded to Mr. Buchanan in the amount of $8,500.00 for Kelowna’s breach of good faith. In a similar context, the Court held that being escorted off the work premises with no evidence of disruption or damage to property amounted to bad faith and was insensitive.
Takeaway from Lee, Pohl, and Kelowna
While the Court in Lee was openly hesitant with respect to entertaining the claim for additional damages under Wallace regarding Ms. Lee’s removal—specifically due to an employer’s right to “safeguard its business from disruptions caused by distraught fired employees.” The facts and the Court’s reasoning in these circumstances (non-disruption and no inference of Ms. Lee’s willingness to cause damage) gives rise to additional damages.
What we learn from Lee, Pohl, and Kelowna is that should you be escorted off your work premises following termination, the circumstances surrounding your removal could amount to additional damages under Wallace.
Should such a situation happen to you, remain calm and take note of the circumstances. No one deserves to be humiliated or paraded out of a work premises following termination, especially if you pose no threat of disruption or damage to an employer’s business. Should you be faced with a similar situation following your termination, please reach out to De Bousquet PC and we will ensure your best interests are protected.