“Constructive dismissal” is different from wrongful termination. If an employee leaves, usually it is by resignation. However, if the departure is due to an alleged toxic, abusive or intolerable workplace, to the extent that the employer has substantially changed fundamental or essential terms of the employment contract, it may be considered a forced departure, or constructive dismissal.
A recent B.C. case demonstrates the importance of maintaining a workplace free of harassment, toxicity and abusive behaviour.
In this case, an employee alleged a co-employee engaged in, among other things, intimidation and both verbal abuse and harassment. The employer conducted an internal investigation, concluding many of the allegations were unfounded or unsubstantiated, although the co-employee was disciplined for using profanity in the workplace. The employer concluded the workplace conflict was attributable to both employees, effectively. The employee remains dissatisfied with the employer’s reaction to her complaints and, ultimately, resigned from her employ and sued the employer for constructive dismissal.
The Court noted the legal test to successfully establish a toxic, or intolerable, workplace, being a relatively high barrier: whether a reasonable person in the circumstances should not be expected to persevere in the employment. An individual's subjective perception of the work environment will not be enough to establish constructive dismissal. Unfriendliness, confrontations between co-workers or even some hostility and conflict will not amount to constructive dismissal where the employee is still able to perform his or her work. In this case, the Court found no ongoing, repeated abusive behaviour, nor did the employer tolerate or condone any sufficiently objectionable behaviour in the workplace. Rather, the employer was found to have treated the complaints seriously, discipline the co-employee, in part (for using profanity) and arranged for a professional coach to try to intervene and distill the conflict between the co-employees.
The test for toxic, poisoned or intolerable, workplace had not been met by the complaining employee.
However, regardless of the legal outcome, the employer incurred significant expense in the process, which caused uncertainty and additional conflict within the workplace, all of which may be more avoidable by taking the following steps:
- Implement and maintain a respectful workplace policy;
- Establish and implement a workplace policy for harassment, sexual harassment and conduct within the workplace;
- Treat and handle complaints seriously, including pursuant to any written workplace harassment policy, which is mandatory by law;
- Take action, where appropriate; and
- Reaffirm the commitment to having and maintaining a respectful workplace.
Baraty v. Wellons Canada Corp., 2019 BCSC 33.