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Surreptitious recordings and moral damages, Oh my!

Surreptitious recordings and moral damages, Oh my! img

In Teljeur v Aurora Hotel Group, 2023 ONSC 1324, a court had to decide whether an employee who had been terminated without cause, was entitled to moral damages because of the employer’s actions.

Background

John Teljeur worked as the General Manager of Pinestone Resort & Conference Centre, which was operated by the Aurora Hotel Group (“Aurora”).

On December 6, 2021, about three years after he was hired, two senior Aurora executives informed Mr. Teljeur that his employment was being terminated without cause. During the termination meeting, which was held privately, the executives told Mr. Teljeur that Aurora would pay him out for the week and give him eight weeks of pay in lieu of notice. The executives also told Mr. Teljeur he could resign as it would be better for him.

Mr. Teljeur brought a motion for summary judgement in the Ontario Superior Court of Justice, seeking among other remedies, reasonable notice of 10 months and moral damages in the amount of $20,000.

Decision

On the issue of reasonable notice, the Court held that Mr. Teljeur was entitled to seven months based on his senior management role, three years of employment, age at time of termination (56 years), and his difficulty in finding new employment which the Court said was likely due to his age and the COVID-19 pandemic.

On the issue of moral damages, the Court held that Mr. Teljeur was entitled to the sum of $15,000 for the employer’s actions. In arriving at this decision, the Court relied partly on a surreptitious recording of the termination meeting that Mr. Teljeur had made. The factors that led to the award of moral damages for employer actions the Court found were untruthful, misleading or unduly insensitive, included the employer’s:

  • failure to give Mr. Teljeur written notice of termination as required by the Ontario Employment Standards Act (the “Act”);
  • failure to provide Mr. Teljeur with his statutory entitlements within the time frame stated in the Act;
  • altering Mr. Teljeur’s terms and conditions of employment during the notice period by not reimbursing his business expenses in the amount of $16,680.03;
  • act of giving Mr. Teljeur statutory pay in lieu of notice after assuring him that it would give him eight weeks pay in lieu;

The Court noted that while there was no medical evidence to document the stress suffered by Mr. Teljeur the above noted factors were sufficient to show that Mr. Teljeur suffered additional significant stress on top of the stress of being terminated.

Employer takeaways

  • Employers must comply, at a minimum, with obligations set out in applicable legislation.  This is non-negotiable.
  • If an employer makes representations or promises in relation to the termination, the employer must fulfil those obligation.
  • Employers should train staff who conduct termination meetings, on termination best practices.
  • Surreptitious recordings of workplace conversations are on the rise. Always assume that you are being recorded and act accordingly.

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