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EMPLOYMENT LAW
Dec 11, 2012

Jury is out on employment law

Juries more likely to hand out big damage awards, but are they likely to stick?
    

By Jeffrey R. Smith

When it comes to damages for wrongful dismissal, there’s a ton of case law out there. Once you’ve filtered through enough decisions, it’s pretty easy to get a rough picture of the range of damages an employee can win from employers.

Every once in a while, a decision comes down that awards an amount larger than normal, but usually damages in lieu of notice fall within a certain range, as well as any extra damages for things like the employer’s bad faith. But there’s a wild card that has popped up in two recent wrongful dismissal cases that could lead to a rich former employee and a significantly poorer employer.

That wild card is a jury, which isn’t very common in employment law cases.

The vast majority of employment law cases that take place in courts are heard and decided by a judge. Judges are well-versed in law and follow trends from precedent cases, so often their decisions will fall into line — or at least not vary too widely from — established jurisprudence. This allows both sides to at least have an idea of where damage awards are going and what to expect. But when a jury comes into play, it seems the sky’s the limit.

Last summer, a British Columbia lumber mill worker chose to have a jury hear his wrongful dismissal case. It seemed to be the right decision for him, as the eight jurors found the worker’s treatment at the hands of his employer when he was fired — he had 30 years of service and was railroaded out of his job by a new owner — warranted damages totalling more than $800,000, including nearly $600,000 in punitive damages. At the time, the latter represented the highest punitive damage award arising from a wrongful dismissal ever in Canada.

Even more recently, a Windsor, Ont., woman brought a constructive dismissal suit against a Walmart store where she worked for several months. Alleging she faced a campaign of verbal abuse and humiliation by the store manager, her case was heard by a jury.

The woman asked for $200,000 for infliction of mental suffering and $1 million in punitive damages. Not only did the jury award her what she asked for, it also gave her $10,000 for physical assault from the manager and another $250,000 from the manager personally, giving her $1.46 million in total damages. She actually had to go back to court to revise her claim upwards to match the award.

So it seems that if employees are looking for a big award in a wrongful dismissal case, a jury trial may be the way to go and employers should be wary of such circumstances and the uncertainty that can come with them. However, jury trials can be longer and more expensive, so there is more of an element of risk for employees if that’s the route they go.

But are jury trials that much more of a danger to employers’ bank accounts? Given the size of the awards in the above cases, and the fact the damages were awarded by less sophisticated juries as opposed to judges well-versed in law, there’s a good chance both decisions will be appealed and lower awards substituted. Even large wrongful dismissal awards given by judges have been overturned on appeal before, so it’s even more likely a jury’s award would be overturned. And if that’s the case, maybe that’s why jury trials aren’t very common in employment law.

Are juries something to be feared by employers? Is it worth it for employees to proceed with a jury if there’s a good chance their award will be replaced with something lower? Maybe there are good reasons jury trials are still uncommon in employment law.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com.

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