In General Motors of Canada Limited v Johnson, 2013
ONCA 502, the Ontario Court of Appeal overturned an earlier
decision which held that a worker was constructively dismissed
based on allegations that the workplace was poisoned by racism.
The plaintiff, Yohann Johnson, claimed that the reason another
employee, Alex Markov, refused to attend a training session led by
Johnson was because Markov was racist. Markov claimed that he
refused to train with Johnson because of his personal dislike of
Johnson, resulting from insensitive comments Johnson allegedly made
about the death of Markov's brother.
GM investigated Johnson's complaints on three separate
occasions and took remedial action. Dissatisfied with GM's
response, Johnson took a two-year approved medical leave of absence
to recover from a disability that arose from the alleged
discrimination he experienced in the workplace.
Once Johnson was cleared to work, GM offered him two different
positions, both within one kilometer of his prior place of
employment. GM also offered to adjust Johnson's shifts and
supervision. Johnson declined the offers, asserting that he was
disabled from working at any GM plant where he may come into
contact with his former colleagues. Receiving no medical evidence
to support this claim, GM concluded that Johnson had resigned.
Johnson claimed he had been constructively dismissed as a result of
a workplace poisoned by racism.
Not constructive dismissal
Despite finding that Johnson, "genuinely believed that he
was a victim of racism in his workplace" and his
"perception of events unfortunately led to stress and mental
anguish", the Court overturned the trial decision, finding
insufficient objective evidence to sustain Johnson's claim.
The Court emphasized the seriousness of an allegation of racism
in the workplace and confirmed the far-reaching reputational and
employment implications a finding of a poisonous workplace has for
the claimant, alleged perpetrators, and employer. The Court held as
Judicial consideration of an allegation of constructive
dismissal based on alleged racism in the workplace requires careful
scrutiny of and balanced attention to all the evidence relating to
the allegation in order to determine whether it is more likely than
not that the alleged racism occurred.
The Court made the following findings with respect to the
allegedly poisoned workplaces:
Onus: The plaintiff bears the onus of
establishing a claim of a poisoned workplace on a balance of
Discharging Onus: The plaintiff's
subjective feelings and genuinely held perceptions of
discrimination in the workplace are insufficient to discharge the
onus. The onus is discharged only when there is evidence that, to
the objective reasonable bystander, would support the conclusion
that the workplace was poisoned by discriminatory conduct.
Required Misconduct: Except for egregious
stand-alone incidents, a poisoned workplace is not created unless
serious wrongful behaviour is persistent or repeated.
With respect to the law of constructive dismissal caused by a
poisoned workplace, the Court held as follows:
Standard of Proof: An employee must prove that
the employer's conduct not only constituted a repudiation of
the employment contract but that the employer's persistent
discriminatory conduct rendered continued employment
Accommodation Requirements: An employer is not
required to ensure that there is no possibility of future contact
between the complainant employee and the discriminator
Take away points for employers
The Court was satisfied that GM had taken Johnson's
complaints seriously; conducted several thorough investigations;
made clear to employees that they did not approve or condone
discriminatory conduct; and presented fair and reasonable
employment accommodation options to Johnson.
If faced with similar issues, employers should ensure that: (1)
all complaints of discrimination in the workplace are taken
seriously; (2) complaints are investigated in a timely fashion; (3)
investigations of discrimination are thorough and conducted by
experienced and objective personnel; and (4) fair and reasonable
employment accommodation options are offered to employees who
suffer from a disability as a result of a perception of
discrimination. These actions project to employees and the public
that the employer does not approve or condone discriminatory
conduct in the workplace.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
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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