Jan Morningstar was a hotel cleaner in Niagara Falls. She successfully overcame uterine cancer but was left with one of the symptoms, an unusual odour. She was relentlessly teased and harassed by her co-workers and management did little or nothing to assist her. She needed the job and tried to keep working in spite of it, until her doctor told her that she could not go back to that workplace due to the severity of the mental stress disability the management and co-workers had caused.
She sued her employer for constructive wrongful dismissal, since she was not fired but forced to leave because of her employer’s failure to provide a safe working environment. Her employer took the case to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) saying this is a workers’ compensation mental stress claim and she has no right to sue. The WSIAT agreed.
The Divisional Court of Ontario did not agree [see Aug. 18 2021 decision Morningstar v. WSIAT, 2021 ONSC 5576 (CanLII); intervenor IAVGO]. The court noted that the historic compromise prevents injured workers from suing in tort for damages and does not bar wrongful dismissal actions which are founded in contract law and employment law. The court said a workers’ compensation claim does not compensate for being fired and the types of damages claimed for wrongful dismissal are different from workers’ compensation and are not available under the Workplace Safety and Insurance Act. So the injured worker can sue for damages in lieu of notice of termination, and aggravated, moral and punitive damages, which are all clearly linked in law to the employer’s alleged disregard for the terms of her employment.
- Mojtehedzadeh, Sara. 2020 Oct. 20. “This cancer survivor was harassed, taunted and sprayed with Lysol by colleagues. But a tribunal says she can’t sue her workplace.” Toronto Star