The Court of Appeal's decision in General Motors of Canada Limited v Johnson does
not break any new ground in the law of constructive dismissal. But
against the backdrop of Bill 168 (the Violence and Harassment
in the Workplace Act) and recent developments in workplace
safety and human rights law, it clarifies when workplace harassment
will constitute a constructive dismissal.
The plaintiff Yohann Johnson alleged that another employee, Alex
Markov, refused to attend a training session led by Johnson because
Johnson is black. GM investigated Johnson's complaint three
times. Johnson was ultimately unsatisfied by GM's
investigations and findings. He took an approved medical leave,
citing disability arising from discriminatory treatment due to
racism in the workplace. After two years, Johnson was cleared to
return to work, but refused to do so in the same workplace as
Markov and another employee. GM treated Johnson's refusal to
return to work as resignation of his employment. Johnson responded
by suing for constructive dismissal.
The trial judge ruled that GM was liable to Johnson for
constructive dismissal and awarded him $160,000 in wrongful
dismissal, special and bad faith termination damages. In reaching
this conclusion, the trial judge found that Markov's refusal to
attend the training session was racially-based and this incident,
subsequent incidents and GM's failed investigation created a
The Court of Appeal overturned the decision. It found that the
trial judge erred in finding that Markov's refusal to attend
the training session was motivated by racism. More importantly, the
Court of Appeal highlighted the following legal tests:
The plaintiff bears the onus of establishing a claim of poisoned
workplace. There must be evidence that, to the objective reasonable
bystander, would support the conclusion that a poisoned workplace
environment had been created.
A poisoned workplace is not created, as a matter of law, unless
serious wrongful behaviour sufficient to create a hostile or
intolerable work environment is persistent or
The test for establishing constructive dismissal is whether a
reasonable person in the same situation as the employee would have
felt that the essential terms of the employment contract were being
Applying this framework, the Court of Appeal held that even if
Markov's absence was racially-motivated, that conduct alone
does not support a finding that the entire workplace was poisoned.
The offending conduct must be persistent and repeated unless the
incident in question is sufficient, standing alone, to taint the
entire workplace. The court held, further, that in this case, there
was no evidence that GM intended to repudiate Johnson's
employment agreement—it was entitled to rely on the medical
evidence that Johnson was fit to return to his pre-disability job
without accommodation and there is no obligation on GM to immunize
Johnson from contact with Markov or other employees.
For employers, this decision is a good reminder that employers
must treat workplace harassment allegations seriously, including
conducting an investigation into the allegations. At the same time,
employers can draw a line where they find that the allegations are
meritless or the employee's demands for accommodation in the
circumstances are unreasonable.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).