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:
...whether the conduct of the manager was such that a
reasonable person in the circumstances should not be expected to
persevere in the employment...
Two recent cases provide interesting bookends to the 2000 Shah
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
$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
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
...the plaintiff was the author of her own misfortune in
terms of her experience of a negative atmosphere in the workplace.
Despite her role as a manager she actively participated in, and
sometimes initiated, communications that were designed to increase
the dissension and conflict among the upstairs staff...
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
...The work was getting done. The atmosphere was unpleasant.
The plaintiff did not apply herself to improving it...
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.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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