Sultan Lawyers on Dismissal Pt. 5: When Can I Claim Constructive Dismissal as a Result of Workplace Harassment?

Workplace harassment, violence or bullying are serious issues that affect many workplaces.

So what happens when an employer fails to put an end to abusive conduct in the workplace and an employee is forced to take matters into their own hands? If the work environment has become so toxic and unsafe that an employee is forced to leave their job, do they have any recourse against an employer who failed to investigate or address the situation before it was too late?

These are questions that our lawyers get all the time from employees feeling trapped within a variety of dysfunctional work environments. The answers are not always simple, and they matter in cases including constructive, wrongful, and unjust dismissal.

What is (and isn’t) workplace harassment?

In Ontario, workplace harassment is defined under the Occupational Health and Safety Act as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.”

This definition covers instances of workplace sexual harassment, as well as what is often called psychological harassment or personal harassment, which can include any of the following:

• bullying;
• jokes that demean, ridicule, intimidate, or offend;
• repeated offensive or unwelcome comments, whether communicated in person, by phone or through e-mails;
• behaviour that intimidates or isolates an employee; or
• behaviour that discriminates against an employee.

Typically, the comments or conduct constituting harassment will happen more than once, but they could occur all at once over a relatively short period of time or gradually over a longer period of time.

There may also be certain exceptional situations where the conduct happens only once and still clearly falls into the realm of harassment. For example, a single incident involving a supervisor who makes an unwelcome sexual advance towards an employee working under their direction could constitute workplace sexual harassment.

Reasonable actions relating to the management and direction of workers will not be considered workplace harassment so long as they are exercised fairly. This could include changes in work assignments, scheduling, job assessment and evaluation, workplace inspections, implementation of health and safety measures, and disciplinary action.

Generally, normal disagreements between co-workers would also not be considered workplace harassment, even if these disagreements involve some amount of hostility.

My co-worker is harassing me. What does my employer need to do?

All employers have a legal obligation to investigate allegations of harassment, bullying and violence in the workplace properly and fairly. The rules around workplace harassment are meant to take into account the fact that it can be difficult to run a business and simply mandate that a company conduct an investigation that is “appropriate in the circumstances.” However, regardless of how busy life at the office is, business owners cannot use this as an excuse not to properly investigate allegations of workplace harassment or bullying.

In the recent case of Bassanese v. German Canadian News Company Limited et al, the Ontario Superior Court found that an employer was guilty of bad-faith conduct when it failed to investigate an employee’s harassment complaints or discipline her abusive co-worker. This employee had made a formal complaint that a co-worker had been verbally harassing her, and the president of the company acknowledged her complaint and wrote back to her on the same day, stating, “Sorry to hear that. We’re a little short-staffed this week (2 illnesses, 1 sick child and a vacation) but I’ll run it by Anne Marie, she’s our HR person.” After the employee received this message, the employer continued to fail to prioritize the complaint and eventually even fired her when the basis of her complaints escalated to include physical violence.

With 19 years of service, this employee was entitled to substantial common law notice, but the court also awarded significant aggravated damages to compensate her for the employer’s overall poor handling of the complaint process.

Employers who do proceed with an investigation process should ensure that the complainant is not subjected to an intolerable work environment while the complaint is being investigated and addressed. In certain circumstances, it may even be appropriate to put the employee on leave throughout the investigation process.

All participants in the investigation should be informed that the information obtained in interviews, including identifying information about any individuals involved in an incident or complaint of harassment, is not strictly confidential as it may be shared if the disclosure is necessary for the purpose of investigating or taking corrective action with respect to the incident or complaint, or is otherwise required by law.

Finally, the worker who has allegedly experienced workplace harassment and the alleged harasser should be informed in writing of the results of the investigation and of any corrective action that will be taken as a result of the investigation.

In general terms, an employer’s failure to properly investigate a complaint of workplace harassment, bullying or violence, or to take disciplinary action against a perpetrator, can be justification for a constructive dismissal claim under both the Employment Standards Act and the common law.

Takeaways for Employees

All employees have the right to a harassment-free workplace, which in Ontario means that they have the right to have their complaints taken seriously, investigated and addressed by their employers.

However, employees should be aware that they do not have the right to dictate the investigation process. There is not a one-size-fits-all model for investigations. Rather, the investigation process can and should be tailored by the employer to what is “appropriate in the circumstances.”

Accordingly, employees who wish to claim that the actions (or inaction) of their employer are justification for claiming constructive dismissal should first speak to an experienced employment lawyer to ensure that they have made the necessary effort to work with their employers and that their actions will be seen as reasonable by a court later assessing the situation as a whole. A duly qualified counsel can also assist in addressing repercussions including unjust dismissal.

Takeaways for Employers

Even if it seems like an investigation is not necessary – for instance because the complainant is no longer in the workplace – conducting an investigation is still the safest bet for employers hoping to avoid liability down the line.

Further, if you are a federally-regulated employer, once the new Bill C-65 comes into effect, this will soon no longer just be a best practice, but a requirement.

The amendments to the Canada Labour Code will require employers to investigate concerns from former employees that become known to the employer within three months from the day the former employee was dismissed or resigned.

Contact Sultan Lawyers for Legal Advice

If you are experiencing workplace harassment, or if you believe that you may have been wrongfully or constructively dismissed and you would like to consult with an employment lawyer to better understand your rights and obligations, please contact Sultan Lawyers by telephone at 416-214-5111 or by here.

This post is part five of a six-part series. Please see the previous posts below:

• Part 1: What Defines Wrongful Dismissal?
• Part 2: My Employer is Reducing my Pay. Am I Entitled to Damages for Constructive Dismissal?
• Part 3: The Difference Between Wrongful and Constructive Dismissal
• Part 4: The Difference Between Wrongful and Unjust Dismissal