Employer’s Bad Faith Conduct Results in Award of Aggravated Damages

In Nunez-Shylar v. Osoyoos Indian Band, 2025 BCSC 491, the employee sued her former employer for constructive dismissal after returning from medical leave. In addition to damages arising from her constructive dismissal, she was awarded aggravated damages due to the employer’s conduct in the manner of termination.

Facts

The employee worked for the employer since 1999. She was initially a receptionist and eventually advanced to the position of First Nations Tax Administrator.

The employee initially went on an unexpected medical leave in July 2017. When she returned to work she learned a job posting for a tax administrator trainee had been posted without her involvement. The pressure to train the new trainee and perform her own duties caused her an increasing amount of stress, resulting in her taking another medical leave at the beginning of April 2018.

While on medical leave, her insurance provider assigned her a rehabilitation consultant. The rehabilitation consultant attempted to contact the employer’s representative to discuss the employee’s graduated return to work (GRTW). However, the rehabilitation consultant did not receive any responses from the employer for seven months, despite his calls and numerous emails. Seven months later he received a response from the employer. The employer finally confirmed the employee’s GRTW was to start in July 2019, despite being initially contacted by the rehabilitation consultant in November 2018.

Upon her GRTW the employee was subjected to demeaning and disrespectful treatment:

• the employer refused to allow her to return to the workstation she previously occupied for several years, directing her to sit at a temporary table for three weeks while her former trainee occupied her workstation;
• the employer refused to provide her with a proper workstation with a proper working computer connected to email, the tax administration database and programs and a working telephone;
• the employer refused to follow the directions of her rehabilitation consultant to provide her with a proper workstation;
• the employer demoted her from her position as tax administrator reporting to the Chief, to a tax officer reporting to the Controller, without disclosing that the tax administrator position had been appointed to another employee; and
• the employer made the demotion permanent by directing her to divide her responsibilities with another employee.

Despite multiple efforts from her rehabilitation consultant to facilitate a smooth return to work, the Employer was uncooperative. The Plaintiff eventually left the workplace and claimed that she had been constructively dismissed.

Ultimately, the Court concluded that the Plaintiff was constructively dismissed and awarded her damages based on a 24-month notice period. In addition, the Court awarded the Plaintiff  $50,000 in aggravated damages as a result of the Employer’s bad faith conduct towards her in the manner of her dismissal. The Court found the employer was not candid, reasonable, honest or forthright with the employee and as a result, the employer breached its obligation of good faith in the manner of dismissal.

Thisdecision demonstrates how the failure to treat employees honestly and in good faith can give rise to significant additional legal risk and liability for an employer, well beyond the termination notice and severance obligations upon without cause termination.

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