Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 Mental stress damages don't require 'separate actionable wrong': Court Federal court overturns labour board decision that employee's suspension was excessive but there needed to be a separate wrong to warrant aggravated damages BY JEFFREY R. SMITH A FEDERAL employee may be entitled to mental distress damages on top of a suspen- sion revocation and compensation for lost pay after the employer failed to deal prop- erly with a problem co-worker, the Federal Court has ruled. Gisele Gatien worked as a public servant for the federal government for 35 years. In 1995, she became a manager of the federal workers' compensation program, respon- sible for processing claims. She had a clean record with no discipline over her term of service. In the fall of 2010, one of Gatien's em- ployees began displaying poor behaviour at work. Gatien complained to the director general and the regional director. However, the problems with the employee contin- ued. ings became so bad that by March 2011, Gatien was contacting labour rela- tions advisors almost every day, asking for assistance in dealing with the problem em- ployee. e employee had received some disci- pline and in late March 2011, Gatien was about to give the employee more severe discipline – the next step in the progressive discipline process – when the regional di- rector told her to stop. Gatien wasn't given a reason, but she complied. Over the next couple of months, Gatien received three complaint letters about the problem employee from other employees under her supervision. Gatien forwarded these to the regional director and requested the problem employee be removed from the workplace. On May 24, 2011, Gatien was preparing to issue a written reprimand to the problem employee, but the regional director inter- vened and told her to halt all disciplinary proceedings related to the problem em- ployee. Again, no reason was given. Two days later, on May 26, the problem employee pulled Gatien's hair during an altercation in the workplace. Police were called and Gatien reported the incident to the regional director. e problem em- ployee was subsequently removed from the workplace and transferred to another de- partment. Shaken by the incident, Gatien sought psychological help and filed a successful workers' compensation claim while she made regular visits to a psychologist. On July 8, Gatien learned that the prob- lem employee was returning to collect her personal belongings. Gatien was told to leave early and tell her staff to do so as well, but Gatien reacted strongly and barricaded the office when the problem employee ar- rived with a union representative and the director of labour relations. Four days later, the regional director and the director general interviewed Gatien about the incident and Gatien acknowl- edged being the only person to build the barricade in the office. However, she evad- ed most of the other questions. Gatien fol- lowed up a few days later with an email ex- plaining she regretted her actions. Gatien went on sick leave in September 2011 and provided a medical note from her psychologist when she returned. On Oct. 14, she attended a disciplinary hearing. On Nov. 17, Gatien was suspended for 10 days for the barricading incident and a perceived failure of Gatien to address the problem employee's behaviours. After the suspension, Gatien had to re- duce her hours on her doctor's advice and eventually went on sick leave again while seeing her psychologist. She filed a griev- ance claiming $100,000 in damages for mental distress. Her psychologist wrote a letter stating that "the major source of Ms. Gatien's problems is not the assault itself so much as her employer's refusal to recognize the harm that was done to her and to protect her from further harm in the workplace." e Public Service Labour Relations Board reduced Gatien's suspension to an oral reprimand and ordered the federal gov- ernment to compensate her for lost wages and benefits, but denied the claim for men- tal distress damages. e board found the excessive suspension could not lead to dam- ages because it was not a "separate action- able course of conduct" – as stated in Wal- lace v. United Grain Growers Ltd. – with a remedy separate from the suspension re- duction and reimbursement of pay. e board also found there was no evi- dence of bad faith in the employer's con- duct, the employer had no medical infor- mation regarding Gatien's psychological state when it disciplined her and there was no evidence of loss of professional standing. Gatien appealed the denial of mental dis- tress damages to the Federal Court. e court found the board did not err in law when it determined mental suffer- ing damages were not warranted, because the board didn't say such damages were never awarded, but rather weren't typi- cally awarded. However, the court found the board misunderstood the test for those damages. e court said it was current law that ag- gravated damages for mental stress were based on reasonable foreseeability, as estab- lished in Keays v. Honda Canada, and didn't require an independent actionable wrong. e board's interpretation was an error in law, said the court. e court also disagreed with the board's finding there was no medical evidence of Gatien's mental stress. e report of the hair-pulling incident made note of the fact Gatien was in shock and tears afterwards and Gatien's workers' compensation claim described it as "assault-traumatic incident." Gatien had also said during the investigative meeting that she was stressed as a result of the assault and a medical note in September referred to "recent stressors." e court also found Gatien had prompt- ly informed her superiors of the problems with the employee and suggested discipline, so she could not be blamed for not bringing things to their attention. e court overturned the board's decision on mental distress damages and referred the matter back to the board to consider all the evidence in determining damages. For more information see: • Gatien v. Canada (Attorney General), 2015 CarswellNat 1195 (F.C.). • Wallace v. United Grain Growers Ltd., 1997 CarswellMan 455 (S.C.C.). • Keays v. Honda Canada Inc., 2007 Car- swellOnt 1874 (S.C.C.). Canadian Employment Law Today | 7 Cases and Trends The court said it was current law that aggravated damages for mental stress were based on reasonable foreseeability and didn't require an independent actionable wrong

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