Highlights of Noteworthy Decisions

Decision 1227 19
17/10/2019
J. Smith
  • Right to sue (wrongful dismissal)

The defendant in a civil case applied to determine whether the plaintiff's right of action was taken away.

The action claimed damages for constructive dismissal, bullying, harassment and a poisoned work environment.
Generally, the Tribunal has found that the right to bring an action for wrongful dismissal is not removed by the WSIA. It is only in exceptional circumstances, where the circumstances of the wrongful dismissal are inextricably linked to the work injury, that the right of action is taken away.
The Vice-Chair found that the exception applied in this case. The Vice-Chair noted that this was not a case of wrongful dismissal in the usual sense but, rather, for constructive dismissal, meaning that the worker's employment was effectively terminated by the harassing and bullying conduct of co-workers and management, which caused her mental distress to such a degree that she was forced to take sick leave and, ultimately, to resign. These facts, if proven, are inextricably linked to a claim for mental stress under s. 13(4) of the WSIA. Thus, the worker's right of action was taken away.
In arriving at this decision, the Vice-Chair noted that the Tribunal has found that actions for damages flowing from a work injury are statute-barred even when the remedies sought are different from those compensated in the WSIA when those damages flow from a work injury falling within the scope of the WSIA. The manner in which the action is framed is not determinative as to whether the action is statute-barred; rather, the determination is rooted in a consideration of the fundamental nature of the action and whether it arises in respect of a work injury.
In this case, the injury for which the plaintiff claims damages, albeit under several heads, all flow directly from the harassment and bullying she alleges in the workplace and the employer's response to these allegations, which contributed to the injury sustained and the mental stress she experienced.
The plaintiff's right of action was taken away.