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“Thin Skull” Aggravated Damages in Wrongful Dismissal?
Younesi v Kaz Minerals Project BV, 2021 BCSC 614 is a new wrongful dismissal decision out of British Columbia involving a 6 month notice period for a short-service management employee who was poached from another employer, and who was also awarded aggravated damages in the amount of $12,500 due to the distress he experienced as a result of his termination of employment.
This aggravated damages award was a bit unusual because it incorporated the so-called “thin skull” principle from personal injury law, which generally provides that you take a plaintiff as you find them: so long as some injury was foreseeable, the party causing the injury is liable for all of the injury, even if injury is worse than you would have expected. This sort of analysis is common in personal injury law, but is not common in wrongful dismissal cases.
The plaintiff worked for the defendant as a professional engineer from November 12, 2018 to January 28, 2019, and had been poached away from a job he held for 2 years to join the defendant employer. The defendant employer determined he was not a good fit for the team, and terminated his employment. The important facts for the purpose of this analysis can be excerpted directly from the case at para 70:
Khalil and Mr. Batteson had reached the conclusion that Mr. Younesi was not a good fit for their project and that his employment should be terminated sooner rather than later;
this message was conveyed to the human resources branch of Kaz Minerals who prepared and signed the January 28, 2019 termination letter which was to be presented to Mr. Younesi at the meeting scheduled for that date;
the letter was drafted in such a way that it could be presented to Mr. Younesi for immediate signature not merely as an acknowledgement of receipt but, more importantly, to “confirm [his] acceptance of the terms and conditions offered in the letter”, including compliance with the termination provisions of Mr. Younesi’s employment agreement;
Younesi was somewhat callously informed at the meeting that the reasons for his termination “did not matter”;
when aressed by Mr. Younesi for an explanation, he was informed that he did not have the respect of senior management, that he was neither a competent engineer nor a good manager, that he was embarrassing the company, and that they did not wish to have him associated with the project any further.
Analysis / Conclusion
As noted at the outset, the court found that the employee had been poached away from another job, and awarded him a long notice period for such a short-service employee.
However, my summary and analysis is focused on the fact that the court awarded aggravated damages for the manner of termination, while seeming to attach liability on the basis of the employee’s “thin skull”. Here is the analysis:
 […] the messaging by Kaz Minerals at the January 28, 2019 termination meeting was unduly harsh, insensitive, and, indeed, insulting. It amounted in effect to an attack on Mr. Younesi’s competence, an attack that was all the more hurtful in light of Kaz Minerals’ inducement of Mr. Younesi to leave his previous employment and to join the company’s much more substantial and lucrative undertaking. The termination could have and should have been handled in a much more sophisticated manner.
 Kaz Minerals submits that, even if the Court finds the manner of Mr. Younesi’s termination to have been wrongful, it did not cause Mr. Younesi anything other than the “normal” distress and hurt feelings that arise from the fact of dismissal. It acknowledges that Mr. Younesi may presently be undergoing treatment for mental distress. However, it argues that his condition is caused not by the manner of dismissal but rather the fact that he has been unable to find alternate employment for so long.
 In this particular case, it is apparent, and I find as a fact, that Mr. Younesi takes great pride in his status as a professional engineer and he is deeply affected by any insult to, or disrespect of, his perceived professional competence. In a manner of speaking, this is his “thin skull”, and the reasons given to him by Kaz Minerals for his dismissal have struck at the core of his self-esteem and are at least one contributory cause, albeit not the only cause, of his serious and prolonged emotional upset and distress.
This analysis would not be unusual in personal injury (tort) law, but it is unusual in employment law. There are many cases which have found that an employer is not liable in aggravated damages for the usual hurt and upset experienced by an employee upon termination of employment. Employees are often upset – very upset – when their employment is terminated, and the employer is not usually liable for that, without more, despite that they cause that injury with the termination.
This case could potentially be used for the argument that an employer will be liable for “thin skull” damages where it is not extremely careful in termination of an employee that is vulnerable in some way, despite the prior caselaw which seemed to provide at least some protection to employers for the upset caused by termination of employment.
A Copy of Younesi v Kaz Minerals Project BV, 2021 BCSC 614 can be found at: https://www.canlii.org/en/bc/bcsc/doc/2021/2021bcsc614/2021bcsc614.html?autocompleteStr=2021%20BCSC%20614%20&autocompletePos=1