Ed Canning: Judge delivers sweet justice to discriminatory employer

Peter began working for an airline company specializing in the Chinese market in Vancouver in 2008. He was hired as the marketing and business development manager.

Ten years later, there was a management changeover and the new bosses did not value Peter's position and contributions to the company. Suddenly his work was being criticized and reprimands were being issued with threats of dismissal. He was disciplined for attending an industry event without prior approval.

Soon after, he was demoted to the position of customer service representative and his salary was reduced by 25 per cent. He went from being part of the management team in marketing to a ticketing agent. That didn't provoke Peter to resign, and six months later he was demoted to the position of airport operations worker checking in passengers. By this point, Peter was 68 years old and thought his chances of getting new work were limited, so he lived with the second demotion. Soon after, he was put on three months probation and then terminated.

When Peter sued for wrongful dismissal the employer alleged he had been guilty of time theft and unacceptable performance. It denied he had ever been in management and said he had just been a chauffeur to the general manager. It said he was guilty of sexual harassment and of stealing model airplanes. It said Peter, alone or in concert with the former general manager, was guilty of fraud. The list went on.

The problem was it had no evidence for any of the allegations.

Just before the trial of this matter began, the employer dropped its allegations of fraud, theft of model airplanes and sexual harassment. It decided that perhaps he was more than a chauffeur after all. It continued to insist he was guilty of incompetence, misconduct and unauthorized absences from work. Again, no evidence was presented.

When the employer put Peter on three months probation, it gave him a performance review which stated given his age and physical strength, it is difficult for him to adapt to high-intensity, high-pressure work which sometimes requires working overnight ... this all requires a person's memory, resilience, reflex, speed and even physical strength."

I would pause to note it is rare to find an employer quite stupid enough to reduce to writing its propensity toward age discrimination. The judge found that all of the employer's allegations of just cause for Peter's terminations were unfounded.

Reading the judgment, it is clear the judge was peeved. After 11 years of service, Peter was awarded 20 months of pay in lieu of notice. That is significantly higher than the norm.

The judge also awarded aggravated damages. That is rare in Canada. The judge found that Peter's termination process had actually started with the first demotion and was a relentless campaign thereafter. The list of bad faith dealings exhibited by the employer was long. It included refusing to issue a record of employment and alleging dishonesty and time theft in the termination letter which were completely unfounded. It included all the allegations it made in the course of the litigation which it did not prove.

Peter gave evidence that he found the demotions degrading and was shocked and humiliated from the first demotion on. He felt worthless and betrayed. He was diagnosed with depression. Peter was awarded $50,000 for the mental distress he suffered as a result of the employer's breach of its duty of good faith and fair dealing in the manner of his dismissal. Peter was also awarded $100,000 in punitive damages and the cost of his litigation.

This employer wrote the book on what not to do in the termination process and how not to treat employees. In return, the judge threw that book at them. The law does not always deliver justice but it is sweet when it does.

Ed Canning practices employment and human rights law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com.