February 16, 2012

In unionized workplaces employees have access to the grievance procedure to obtain redress for mistreatment. However, in some cases the mistreatment of an employee may result in the end of the employment relationship, and it may be too painful for the employee to be reinstated and return to the work environment. How should arbitrators calculate damages in such circumstances? If the mistreatment does not lead to termination of employment, what remedies might an arbitrator award? In non-unionized workplaces employer mistreatment of employees can amount to constructive dismissal, but what damages will courts award in such circumstances? When will courts award punitive damages or damages for mental distress or bad faith? A panel of experts will discuss these questions and others, including:

Unionized Workplaces

  • Mistreatment: What types of employer conduct have arbitrators found to be mistreatment of employees? Failure to exercise management rights fairly and reasonably? Bullying/personal harassment? Sexual harassment? Does the employer have a duty to act in a manner that maintains the trust and confidence of employees? What is the impact of the breakdown of this trust? What remedies have arbitrators awarded in cases in which employees have been mistreated but remain employed? Given a unionized employee’s ability to grieve mistreatment or harassment by the employer, does the doctrine of constructive dismissal apply in grievance arbitration?
  • Reinstatement: Is there a presumption in favour of reinstating employees who have been dismissed without just cause? What factors should an arbitrator consider when determining whether reinstatement is appropriate? When is reinstating the employee in a different part of the work environment a viable remedy for an employee who has been mistreated?
  • Breakdown of the Employment Relationship: In what circumstances have arbitrators found that reinstatement is not an appropriate remedy because the employer’s mistreatment of the employee has irreparably damaged the employment relationship?
  • Damages in Lieu of Reinstatement: In what circumstances will arbitrators award damages in lieu of reinstatement? How should damages for lost income and benefits be calculated in cases of dismissal without just cause? Is the calculation the same as that for pay in lieu of notice in employment law? Is some value placed on the loss of a unionized job and the associated benefits, such as job-security or seniority? Is mitigation of lost income taken into account? Can an arbitrator award damages for mental distress? Damages for pain and suffering? Punitive damages? Will inappropriate conduct on the part of the employee affect the quantum of damages? What sort of evidence is necessary to prove the quantum of damages?

Non-Unionized Workplaces

  • Constructive Dismissal: What sort of abusive or harassing conduct by an employer amounts to constructive dismissal? Can constructive dismissal result from the cumulative effect of a series of harassing or abusive acts? Will managerial inaction in the face of abuse by supervisors or co-workers support a determination that the employee has been constructively dismissed? What about failure to enforce an anti-harassment policy?
  • Other Remedies: Do non-unionized employees have access to any effective remedies for mistreatment or abuse by their employer other than a claim for constructive dismissal? Can an employee sue his or her employer for negligent infliction of mental distress?
  • Damages for Constructive Dismissal: What damages do courts normally award for constructive dismissal? When can an employee get compensation for an employer’s bad faith conduct in the manner of dismissal? What kind of bad behaviour will qualify as bad faith conduct? Insensitive conduct? Allegations of theft? Unfounded allegations of cause? When will a court award damages for mental distress or punitive damages relating to the manner of dismissal? Is it unreasonable to expect an employee to consider an offer of re-employment in order to mitigate damages? Can a court hear human rights claims as part of a constructive dismissal action?