When an employee is injured at work, claims often proceed by way of the Workplace Safety and Insurance Board. Once this venue is chosen for the claim, the employee is often precluded from then bringing a second civil claim in court. However, in some cases, an employee may have multiple claims against their employer, in addition to the injury. In those cases, is the employee permitted to proceed with claims in multiple venues? In a recent case, an employer applied to the tribunal to prevent a former employee from bringing a claim for constructive dismissal in court. The Tribunal granted the employer’s request once and stood by the decision on appeal. However, the Ontario Divisional Court has now ruled that this limitation on the employee’s right to proceed with claims in multiple venues was unfair, and allowed the court claim to proceed.
Employee Faced Ongoing Harassment from Colleages, Managers
The employee was a survivor of uterine cancer and is 60 years old. She was employed from 2015 to 2018 with the employer, a hotel chain, in a supervisory role in the housekeeping department. After her promotion to supervisor, the employee was subjected to a campaign of harassment from her colleagues. Complaints by the employee to her manager were met with indifference or humiliating suggestions. At one meeting with managers, the employee was made to apologize to one of her abusers who had allegedly earlier admitted to wrongdoing. The employee took two weeks of medical leave at the recommendation of her doctor. When she returned to work, the employee was informed that an internal investigation conducted by the employer concluded that there had been no harassment.
The employee then complained to the Ontario Ministry of Labour. The Ministry ordered the employer to undergo an independent workplace investigation. The independent investigation concluded that the employee’s colleagues and managers had engaged in workplace harassment. The employer directed the harassers to undergo sensitivity training. However, the employee would still be required to work with the same manager and to continue to work alongside her abusers. The employee resigned in early 2018.
The Employee’s Action and the Employer’s Application to the WSIB
The employee filed a civil lawsuit suit against her employer for constructive dismissal, harassment, and breaches of the Occupational Health and Safety Act and the Employment Standards Act. However, a few months later, the employer brought an application to the WSIB under s. 31 of the Workplace Safety and Insurance Act to bar the employee from moving forward with her civil claims against the employer. The Vice-Chair of the WSIB examined the employer’s application and found that several WSIB decisions concluded that wrongful dismissal actions are not barred by the Act, except for exceptional circumstances.
The Vice-Chair concluded that this case fell within those exceptional circumstances because the claim for constructive dismissal was “inextricably linked” to the injury claim, and therefore barred the applicant from proceeding with her civil claim for dismissal.
The Reconsideration Decision Upholds the WSIB Decision
The employee asked for reconsideration of the WSIB’s decision. A different Vice-Chair examined the decision and rejected the employee’s request for reconsideration. The Vice-Chair found that the first ruling correctly applied workplace safety jurisprudence that says the WSIAT does not remove the right to bring constructive or wrongful dismissal claims except in exceptional circumstances. The Vice-Chair agreed with the finding that this case was exceptional.
The employee then brought an application for judicial review of the WSIAT decisions.
The Ontario Divisional Court Rejects Both WSIAT Decisions
The Divisional Court found that in both decisions under review, the WSIAT’s reasoning and conclusions were unreasonable. The Court found that the WSIAT twice determined that the facts set out by the employee were “inextricably linked” to the workplace injury and that therefore the applicant’s action for constructive dismissal must be barred.
The Court concluded that these rulings were unreasonable because the two decisions applied the “inextricably linked” test in a way that ignored the policy behind the legislation. The WSIAT also ignored the wording in ss. 26, 28, and 31 of the Act that offered guidance to their interpretation. By doing so, the WSIAT disregarded essential facts in the employee’s claim and failed to consider relevant authorities.
The Court quashed both decisions but did not send them back to the WSIAT for reconsideration. Rather, the Court concluded that the employee’s action in constructive dismissal as against the employer, and her claims for aggravated, moral, and punitive damages must be permitted to proceed. Given the substantial delay in the proceeding, and the fact that twice the WSIAT upheld unreasonable conclusions, the Court allowed her claim to proceed to the Superior Court of Justice.
Contact Toronto Employment Lawyers Grosman Gale Fletcher Hopkins LLP for Assistance with Terminations
Employers must be aware that a terminated employee could bring various actions which may qualify for consideration in various corresponding forums. In the case above, the employer tried to limit the employee’s claims to determination by the Workplace Safety and Insurance Appeals Tribunal while limiting her right to bring a civil claim in court. This backfired, potentially costing the employer additional damages depending on the ultimate finding. It would be prudent to consult with an employment lawyer if an employer is facing multiple claims from a terminated employee in order to determine the best way to proceed.
For advice on wrongful dismissal disputes, termination packages and other employment or labour law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.
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