A decision released last week from the Ontario Labour Relations
Board (the "Board") has re-emphasized
the high threshold required to find that the conduct of an employer
amounts to constructive dismissal. In the decision of Julie C. Malboeuf v. PR Dental Facility
Ltd., Julie Malboeuf brought an application under
the Employment Standards Act, 2000 asserting that the
Employer Standards Officer erred in its decision not to grant her
termination pay. Ms. Malboeuf alleged in her application that she
had been constructively dismissed and it is on that basis that she
asserts her claim for termination pay.
Ms. Malboeuf worked as a Dental Hygienist at a practice owned by
the Employer, Dr. Patrick Roy. In late 2012, Ms. Malboeuf quit her
employment without notice. In her application, she alleged that Dr.
Roy had been acting in an intimidating and aggressive manner in the
office. Ms. Malboeuf was particularly upset by incidents including
Dr. Roy speaking to her in a loud voice in front of a patient
criticizing her for not having charted a dental procedure, accusing
her of keeping her patients waiting, taking issue with how she had
been recording her lunch breaks, and throwing a dental instruments
into a tray in her presence. The Board noted that much of the
testimony provided by Ms. Malboeuf was contradicted by witnesses
for the Employer.
The Board outlined the current legal test for advancing a
successful claim for constructive dismissal. It must be determined
whether a reasonable person in the circumstances should not be
expected to persevere in the employment relationship. The case law
recognizes that this is a test that should not be applied lightly,
as employers are entitled to a degree of latitude in managing its
operations and being critical of unsatisfactory work.
The Board provided examples from case law on circumstances where
an employer's conduct towards an employee were objectively
found to be incompatible with the continuation of an employment
The regular use of profanity or racial or other slurs directed
towards the employee;
Often uttered gratuitously, that is not uttered in a context
related to overseeing the employee's work;
Sometimes coupled with menacing physical gestures;
Possibly expressed in a raised voice; or
Belittling or demeaning (rather than merely criticizing) the
employee or his or her work performance in front of other
In the circumstances surrounding Ms. Malboeuf's employment,
the Board concluded that a claim for constructive dismissal was not
met. The Board noted that the circumstances did not involve any of
the abovementioned features, and all interactions between the
employer and Ms. Malboeuf were with regards to work-related
The Board has re-emphasized that the test for determining
whether an employer's actions amount to constructive dismissal
is one that should not be applied lightly, and has provided
guidance for employers on appropriate behaviour in the workplace
when managing its operations.
This article was written with the assistance of Nicole
Buchanan, summer student.
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