Constructive Dismissal Update: Quitting Because of Intolerable Working Conditions

Mar 10, 2015

If an employer’s treatment of an employee is so bad that it makes continued employment intolerable, an employee has the right to quit and claim damages for constructive dismissal. Is there a clear dividing line between intolerable and tolerable behaviour? Between a poisoned work environment and a healthy one? The short answer: no.

What is a Poisoned Workplace?

An employer who creates intolerable working conditions is sometimes considered to have created a poisoned workplace. Workplaces become poisoned for the purpose of constructive dismissal only where serious wrongful behaviour is demonstrated.

Except for particularly egregious stand-alone incidents, a poisoned workplace is not created unless the serious wrongful behaviour, which creates a hostile or intolerable work environment, is persistent or repeated.

Who must Prove That a Poisoned Workplace Exists?

The employee bears the onus of proving that a poisoned workplace exists.  An employee must also establish that the employer’s persistent conduct has rendered his/her continued employment intolerable.

What Test Do the Courts Apply to Determine Whether a Poisoned Workplace Exists?

There must be evidence that an objective reasonable bystander would conclude that a poisoned workplace environment has been created.

A Case Where A Poisoned Work Environment Was Found to Exist

In one case (2000), a judge found that an employee was constructively dismissed because, among other things, the employee’s manager raised unwarranted performance concerns, the employee received a number of unwarranted written warnings, and he was placed on probation without justification and thereafter his manager became “more authoritarian, impatient and intolerant” and “subsequently acted impulsively and without justification.”

A Case Where A Poisoned Work Environment Was Found Not to Exist

In one case (2014), the Ontario Court of Appeal considered a claim by an employee who alleged he was constructively dismissed because of a poisoned work environment caused by racism. The court disagreed with the trial judge who concluded that a reasonable person would conclude that the circumstances were such as would justify the employee to consider he had been constructively dismissed from his employment.

In reaching this conclusion, the Court of Appeal did not find that the offending conduct was persistent and repeated, and found no evidence that the employer intended to repudiate the employment contract.

Lessons to Be Learned

Reasonable people can disagree on whether an employer’s mistreatment of an employee is so serious that it makes continued employment intolerable. Accordingly, it is very important to carefully review all of the circumstances when determining whether a poisoned workplace exists.

If an employee claims to an employer that he is being forced to work in a poisoned workplace then the employer should immediately take steps to address the situation and clearly communicate to the employee that the organization is committed to providing a safe workplace.

If an employee is identifying misconduct that constitutes workplace harassment within the meaning of the Occupational Health & Safety Act then the employer should immediately commence an investigation under its Workplace Harassment Policy.

If an employee is identifying misconduct that constitutes harassment within the meaning of the Ontario Human Rights Code then the employer should immediately commence an investigation under its human rights policy. To read more about a poisoned workplace under the Code click here.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers and employees on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

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