- Right to sue (punitive damages)
- Right to sue (wrongful dismissal)
- Right to sue (wrongful dismissal) (mental stress)
- Right to sue (defamation)
This right to sue application was denied. The Panel determined that the Respondent's action could proceed in its entirety.
The Panel found that the request for damages advanced in the Respondent's claim was in form and content a constructive dismissal action, and did not include a request for damages in respect of injuries sustained in the course of employment. Therefore, it was not an attempt to disguise a tort claim as an employment or contract dispute. It was concluded that the Respondent's action for constructive dismissal damages in lieu of an appropriate notice period of dismissal could proceed.With respect to the claimed defamation, the Respondent's civil action claimed that the employer made false and defamatory statements about the Respondent. It was noted that the only Tribunal case to deal with this type of action was Decision No. 1197/19, where the right to pursue a defamation action was not barred by the WSIA. The Vice-Chair in that decision found that the events related to the civil action for defamation were not "for or by reason of the accident" and that this right of action arose "independently of any alleged personal injury". The Panel accepted the submission of the Respondent's representative that the Respondent's claim for defamation related to the Applicants' post-employment tortious conduct rather than any possible personal injury. As such, the Panel concluded that the Respondent's action for defamation damages could also proceed.With respect to the claimed intentional infliction of mental suffering, the Panel noted that consistent with the general principles of the Morningstar decision, if no benefit entitlement exists under the WSIA for mental stress caused by "decisions or actions of the worker's employer relating to the worker's employment", the worker's right to bring an action in respect of the mental stress caused by the constructive dismissal is not removed by the WSIA. The Panel also accepted the submission of the Respondent's representative that the Respondent's claim for intentional infliction of mental suffering related to the Applicants' post-employment tortious conduct. As such, the Panel found that the Respondent's action for intentional infliction of mental suffering damages could also proceed.Finally, the Panel considered that the Respondent's civil action claimed additional punitive, aggravated and exemplary damages related to "the acts and omissions of the Defendants, as aforementioned, [which] were intentional, high handed, reprehensible, callous and deserving of an award of punitive, aggravated and/or exemplary damages". The Panel referred to Decision No. 1197/19, which noted that "where a cause of action is not taken away, a related claim for aggravated, punitive or special damages is not taken away". The Panel agreed with this generalization to the extent that where punitive, aggravated or exemplary damages are associated with claims not barred under section 31 of the WSIA, the related damage claims are also not statute-barred. It was noted that the Morningstar decision allowed "attendant damages" claimed by the claimant to continue. The Panel stated that there was no basis to remove the Respondent's claims for additional punitive, aggravated and exemplary damages, which were related to the same set of facts advanced in the pleadings. In the Panel's view, the Applicants had no protection from a civil suit for this type of matter under the WSIA. As such, the Panel found that the Respondent's action for punitive, aggravated and exemplary damages could also proceed.