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The Question:

I have been ignoring the bullying that has happened to me for four-and-a-half years. It came to a halt when I was escorted out of the building like a common criminal.

I have had to put up with the following:

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  • My job description was changed and I was told by the person who got my work.
  • I was threatened to have my vacation cancelled on the day that I was going on vacation.
  • Told to do my “f---ing job.”
  • I was threatened to have my door removed from its hinges when I need to have my door closed when I was on the phone with customers. I wear hearing aids and employees have conversations at my door because the manager’s office is across the hallway. There’s no consideration for quiet when I am on the phone.
  • I was segregated from a particular washroom (I was the only one not permitted to use it.)
  • I was segregated from other employees at lunch time. My manager dictated when everyone could go to lunch and I was the only one at noon, everyone else was at 12:30.
  • My manager yelled at me to get out of her office.
  • I was ambushed two weeks ago by the CEO and my manager. They went through my stuff in my office but I had an explanation for all of their queries. The CEO said that this was not a “witch hunt” but I was able to explain about what they had found. The CEO had said that he was terribly disappointed in my organizational skills. I have never had a complaint from a customer about not returning calls, or making a huge mistake with their file. Only thank-you letters saying that they were pleased at my swiftness, compassionate responses, and accuracy.

Then they terminated my five-and-a-half year employment, without cause. No one should be subjected to this kind of treatment. I have never had this happen to me before. This is a big black mark on my employment record. What would be my next steps?

The Answer:

Sometimes you get lucky to get fired.

I had a case a few years ago that was similar to your own, except my client first came to me seeking a way out of her toxic situation. Her boss was trying to destroy her, she explained, by basically setting her up to fail. Day after day he set out to make her life miserable, and he was often successful. She came to me planning to resign.

I told her to be patient and just wait a few weeks. Why? Because there were too many telltale signs that if she did not resign, they would have just fired her anyway. And they did. When you are about to be fired, the writing is often on the wall.

Why would anyone prefer to be fired rather than resign? The reason is that in Canada dismissed employees are entitled to severance, whereas employees who claim they had no choice but to resign have to first prove the workplace was intolerable before they will see a dime. This is usually an uphill battle, and at the end of it, the damages are the same as if they had been fired in the first place. Often it is not worth it.

In your case, since you have already been fired, the real legal question is: How much is it worth? You are already entitled to severance, taking into account your age, tenure, job and re-employment prospects. But if you want any more compensation for the way you say you have been treated, you have to prove that it caused you some kind of economic loss.

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The Supreme Court of Canada has said that employers have an obligation to treat their employees in good faith during the relationship and especially at the time of their termination, and if they do not, employees can claim compensation for any losses they have suffered. You will have to show that your employer's treatment caused you mental distress or psychiatric harm or that your employment prospects have been materially reduced. Assuming you can, a court could award you additional damages on top of severance.

You can make other claims for punitive damages and the intentional infliction of mental distress, but these are extraordinary damages and you must first prove your employer's conduct was flagrant and outrageous. The more you aggrandize your claims, the longer it will take to resolve your case or get to a trial, if that is what you ultimately want.

My suggestion is that you make sure you are getting a fair severance package and consider whether it makes sense to challenge your employer's behaviour in order to get more. My concern is that since you tolerated the situation for a number of years, your employer can argue that the harassment and bullying did not occur or was not as bad as you describe it. Employers and judges are often more suspicious when misconduct is raised for the first time only after your departure.

If the workplace was as miserable as you say, by finally firing you, your employer just may have done you a favour.

Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. E-mail: Dan@canadaemploymentlawyer.com

Have a question about careers, labour law or management? Send it to our panel of experts: careerquestion@globeandmail.com Your name and address will be kept confidential.

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