Canada: How Much Negativity At The Workplace Is Too Much?

As most of our clients will know, bullying and harassment at the workplace can lead to a claim of constructive dismissal. Historically, constructive dismissal results from changes made by employers to key employment conditions, such as salary, hours and geographic location. However, in the seminal Ontario case Shah v. Xerox Canada Limited 1998 CanLII 14747 (ON SC), the Ontario Court of Appeal found that where the conduct of management personnel is calculated to cause an employee to withdraw from the employment relationship it may amount to constructive dismissal. The test defined by the Ontario Court of Appeal is:

Two recent cases provide interesting bookends to the 2000 Shah decision.

Boucher v. Walmart

A recent jury decision from Windsor, Ontario is an extreme example of the damages available in a case of constructive dismissal by harassment. There is no reported decision (as this came from a jury) but media reports indicate that the jury concluded that Boucher was constructively dismissed and awarded her:

• $200,000 for intentional infliction of mental suffering;
• $1 million for punitive damages; and
• $10,000 for assault.

The store manager allegedly yelled at her routinely in front of other employees and she was subject to profane and insulting mental abuse. Boucher was also allegedly punched in the arm.

Danielisz v. Hercules Forwarding Inc.

On the other side of the country, a recent decision from the British Columbia Supreme Court dismissed a claim of constructive dismissal finding that the manager/plaintiff involved was in part to blame for the negative atmosphere she was complaining about.

Danielisz was a licensed customs broker who had been employed by Hercules Forwarding for about four years when she resigned from her employment. In 2003, Danielisz was promoted to manager of the customs department and became responsible for supervising two employees. The workplace was, by all accounts, a negative work environment. The employees Danielisz supervised were not amenable to any criticism. However, Danielisz and the two employees who reported to her used emails to "criticize and belittle" other staff at Hercules Forwarding. Danielisz went so far as to call another employee "stupid" in an email. The court stated:

Ultimately, the court concluded that what occurred at the workplace prior to Danielisz' departure did not surpass the threshold of what an employee might reasonably be expected to bear:

What this means for you

It is clear that harassment at the workplace will not be tolerated by courts. By having a policy that clearly addresses what behaviour is not acceptable and how an employee can respond to such issues, employers can create an atmosphere where bullying and harassment is not tolerated. The quickest way to end this behaviour is to ensure that employees are comfortable bringing forward concerns about bullying and harassment. This means that employers need to educate employees about workplace bullying and create a zero tolerance atmosphere.

At the same time, employers need to be aware that managing the workplace, providing negative feedback and disciplining employees is not constructive dismissal. To the contrary, addressing such problems is part of ensuring a positive working environment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.