Sunday, 26 August 2012

Being Reasonable about Constructive Dismissal

Should I stay or should I go? Without question, the single most difficult case that walks through my door is that of harassment or bullying by managers. This post will focus on general hostile working environments. Working environments that are toxic by reason of violations of the Human Rights Code are treated differently.

The fact scenario most commonly presented is that of the employee who simply cannot take any more from his or her manager and/or subordinates. Pulled in a hundred different directions, often with no support from above, the worker’s well-being starts to suffer.

What is an employee, faced with this situation of unbearable stress, to do?

The answer is nowhere near as straightforward as it should be. I have provided a number of possible answers in my paper “Sick of Work? The Legal Minefield of Workplace Burnout”. This post will focus first on the topic of claims for constructive dismissal and then the decision of the Ontario Superior Court in Chartrand v. R. W. Travel Limited, 2011 ONSC 2148.

The Test for Constructive Dismissal

To be successful in a claim for constructive dismissal a plaintiff must demonstrate to the court that the employer has breached a fundamental term of the employee’s employment contract with the intention of forcing the employee to quit.

The term of the employment contract need not be explicit; it may be implied or deemed to be included by the court. In the Chartrand case, Justice Wilcox of the Ontario Superior Court of Justice wrote:

It is helpful before reviewing the evidence to know the test for constructive dismissal. In Shah and Xerox Canada Ltd., the Ontario Court of Appeal agreed with the trial decision of Cullity J. that the court may find that an employee has been constructively dismissed without identifying a specific fundamental term (of the employment contract) that has been breached….

The most frequently cited articulation of the test cited in cases of management harassment is indeed that of Justice Cullity in Shah v. Xerox Canada Ltd., 1998 CanLII 14747 (ON SC), aff’d 2000 CanLII 2317 (ON CA), in which Justice Cullity wrote the following:

Where the conduct of management personnel is calculated to cause an employee to withdraw from the employment, it may in my judgment, amount to constructive dismissal… An employer is entitled to be critical of the unsatisfactory work of its employees and, in general, to take such measures – disciplinary or otherwise – as it believes to be appropriate to remedy the situation. There is, however, a limit. If the employer’s conduct in the particular circumstances passes so far beyond the bounds of reasonableness that the employee reasonably finds continued employment to be intolerable, there will, in my view, be constructive dismissal whether or not the employee purports to resign.

The fact that poor management conduct may be sufficient to ground a claim for constructive dismissal reflects, I would submit, the principle established by Justice Sanderman of the Alberta Court of Queen’s Bench in the case of Lloyd v. Imperial Parking Ltd., 1996 CanLII 10543 (AB QB), that:

A fundamental implied term of any employment relationship is that the employer will treat the employee with civility, decency, respect, and dignity… This appears to be part of the trend to establish a duty upon an employer to treat employees 'reasonably' in all aspects of the labour process.

Justice Chadwick (retired Regional Senior Justice for Eastern Ontario) used similar and perhaps even more helpful language, at least with respect to claims for those suffering from a mental collapse, in his decision in Robinson v. Royal Canadian Mint, [1992] O.J. No. 2270 (Gen. Div.); aff’d [1997] O.J. 1966 (C.A.). In that case Justice Chadwick wrote that:

There was no formal written contract entered into between Suzanne Robinson [the employee] and the Mint [the employer]. However, I find no difficulty in implying terms to the contractual relationship between Suzanne Robinson and the Mint that they would treat her honestly and fairly. This is in keeping with Iacobucci J's reasoning in Machtinger v. Hoj Industries Limited and the modern day acceptance that the employer owes a duty to treat its employees in a fair and proper manner in all respects of the employment contract. This duty goes as far as to promote the interest of its employees and to see that the work atmosphere is conducive to the well-being of its employees.

The Test is Objective

So far, the language used by the court appears to be helpful to employees. Provided that the employee can demonstrate that he or she was in an employment relationship with the employer (a task that is actually more difficult than it may initially appear), it is not necessary for the employee to prove that his or her employment contract specifically contemplated the fact that the employer would treat the employee fairly or that the employer would promote an atmosphere that is conducive to its employees’ well-being.

The challenge, however, is in proving the breach of those implied duties. What matters is not the subjective appreciation of the situation by the employee, but rather the court’s appreciation of the situation – a fact that proved fatal to Ms. Chartrand in her case. As Justice Cullity wrote in the Shah decision:

…it 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

Further complicating matters is that what a “reasonable person” should be expected to endure is, at least partially, a function of the position that the employee holds. In the Lloyd decision Justice Sanderson wrote the following:

The standard that has to be adhered to by the employer is dependent upon the particular work environment.

Accordingly, it is incredibly difficult to advise employees on whether their manager’s conduct will be viewed by the court of the day as sufficiently repugnant to warrant the employee’s view that his or her only option was to leave employment.

Case Study: Chartrand v. R. W. Travel Limited

Chartrand v. R. W. Travel Limited, 2011 ONSC 2148 presents an interesting case study containing most of the usual facts with which I often find myself presented.

The plaintiff employee, Susan Chartrand, aged 59 began working for the defendant employer in January, 1990 as a travel consultant. She was off work on what is referred to as a “stress leave” from May 31, 2006 to October 10, 2006 when she returned to work.

When she returned to work she presented the Pozniaks, the owner/operators of her employer, with a document titled “Expectation on return to work at Carlson Wagonlit Global Travel on October 10, 2006”. It contained 17 points, dealt with by the court at some length in his reasons for decision.

The plaintiff’s employment with the defendant ended on March 1, 2007 when she tendered her "resignation." She subsequently brought her case for damages, alleging that she was constructively dismissed from her job.

It is clear from Justice Wilcox’s review of the evidence tendered at trial that working for the Pozniaks was anything but easy. Two former employees of the defendant gave evidence as to the abusive conduct of the Pozniaks. Ms. Chartrand’s husband testified as to his wife’s emotional state while working for them, and Ms. Chartrand’s doctor gave evidence that her health demonstrably deteriorated while actively working for the Pozniaks. However, in reaching his decision that Ms. Chartrand had not been constructively dismissed by her employer, Justice Wilcox made a number of critical findings.

On the point of looking at the nature of the work environment, and the employee herself, Justice Wilcox held with respect to Ms. Chartrand's complaint that she was overloaded and given more work than her co-workers:

As a senior, experienced, employee the plaintiff would be able and expected to do more work and more difficult work, which appears to have been the case, and that this complaint does not support a finding of constructive dismissal.

The most interesting dynamic of Justice Wilcox’s decision is the following. The plaintiff had complained that the Pozniaks would often yell at each other in the workplace, or yell at her. Ms. Chartrand took the position that being yelled at by her manager was tantamount to constructive dismissal, a point with which I could be inclined to agree. Justice Wilcox asked Ms. Chartrand to demonstrate what she meant by yelling. On this point Justice Wilcox wrote the following:

[76] When asked to demonstrate what she meant by “yelling”, the plaintiff raised her voice somewhat, although it was not particularly loud, falling well short of a yell. However, she accused Ms. Pozniak of being angry, aggressive and confrontational, and of using a nasty tone. At some unspecified point, she had yelled back at Ms. Pozniak, “quit yelling at us. It’s not helping!”

[77] The plaintiff alleged that the Pozniaks yelled in the presence of the employees and customers. This made her cringe and she felt embarrassed, intimidated and afraid. It led to anxiety and panic attacks. She related it to her becoming physically ill on her way to work one day. That was on one of the occasions when she said Ms. Pozniak yelled at her for being late. Specific examples involved Ms. Pozniak yelling on the telephone in her office at Bell Telephone and the Public Utilities Commission. Also, she said that the plaintiffs would argue between themselves in raised voices, making it hard to work as she would have to cover the telephone so that clients could not hear.

[82] I find that occasions of Ms. Pozniak “yelling” at someone on the telephone, whatever “yelling” means to the plaintiff, does not amount to constructive dismissal. Nor does the arguing between the Pozniaks in the office. There was no evidence as to the frequency of such events, but one has to remember that the plaintiff worked there for 17 years. Also, the expression “yelling” seems to have been used quite liberally by the plaintiff and one or more of the plaintiff’s other witnesses, taking into account the plaintiff’s demonstration in court of what she meant by yelling, which was not very voluble, and the repeated comments by the witnesses that it was not so much the volume as the tone of voice that Roberta Pozniak used. Also, what is characterized as yelling at the plaintiff appears to be more in the nature of stern talk by Ms. Pozniak in her role as manager which the plaintiff was uncomfortable with.

[83] In any event, the evidence under this heading does not rise to the level of demonstrating constructive dismissal.

Commentary

Personally, I find it peculiar that Justice Wilcox relied upon Ms. Chartrand’s demonstration of Ms. Pozniak’s yelling, which was performed by the (I would suspect) meeker Chartrand, for a finding of abusive conduct. However, the point is brought home that what matters is not whether Ms. Chartrand found the conduct sufficiently wrongful, but whether the court did. Unfortunately in this case the court found that the employer’s conduct was not so bad that a “reasonable person” (read: the judge hearing the case) would have objected to it. Notwithstanding that a number of employees had also quit for the same reasons complained of by the plaintiff.

I have a lot of difficulty with this sort of case. The challenge that I have with these cases is the use of the objective test, modified to take into account the position held by the employee. I simply have to ask, as do my clients, why a long-tenured employee, such as Ms. Chartrand, would give up a job that she likes, that pays her a reasonable income, and provides all the securities that come with income, for a constructive dismissal case if working conditions were not dire.

I would submit that, given the (lack of) remedies possible on a constructive dismissal action, the actual possibilities for abuse are few. As is considered in my post about tort remedies, given the position of the Court of Appeal for Ontario in Piresferreira v. Ayotte, 2010 ONCA 384 that an employee cannot sue for negligent infliction of mental suffering, the amount of money that an employee can obtain through such a case is relatively limited.

With all that in mind, where an employee has a documented medical history, as did Ms. Chartrand, demonstrating that when she is at work she is stressed to the point of demonstrable health defects, can it not at least be said that, to use Justice Chadwick’s words in Robinson, that the employer has failed to meet its duty “to promote the interest of its employees and to see that the work atmosphere is conducive to the well-being of its employees?”

I would submit that Ms. Chartrand’s employer failed to discharge that duty, and that such a failure was sufficient to ground her case for constructive dismissal.

Takeaways for Employees with Labour Pains

The takeaway from decisions such as Ms. Chartrand’s is that an employee must be absolutely certain that the risks of starting a case for constructive dismissal are known. Lawsuits are not fun. Cases such as those contemplated above are very difficult to win. A loss can result in the dismissed employee’s having to pay a portion of his or her employer’s legal fees – a literal insult added to injury.

If you believe that you may have been harassed to the point that the only option left is to leave, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers with Labour Pains

For employers, the lesson is that although treating employees poorly may not result in legal liability, that does not make it right. I appreciate, as a manager, employer, and teacher, that management has the right and responsibility to manage and that some people can be simply oversensitive. However, it has been my experience that working with those employees is far more productive and inexpensive than attempting to litigate one’s rights. Of course, other options can always be considered when such situations arise.

If one of your employees is alleging a toxic work environment, it may be time to speak with an experienced employment lawyer. The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

Contact Us

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260. You may also use the contact box at the top of this page.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.



2 comments:

  1. It's an interesting case. I can understand the underlying rationale for the judgment: The "long on generalities and short on specifics" comment resonates with me. I see it far too often, in many different contexts - someone alleges that another person "always" does one thing or another, but when pressed for details can only provide particulars of one or two instances.

    There's nothing inherently dishonest about it - it's a failing of the human memory, that something may have happened frequently, but we don't naturally store a detailed list of each event. But the unparticularized 'always' is essentially an impossible allegation to defend against.

    There's room for differing managerial styles. Many of the 'expectations', while not unreasonable, are not entitlements.

    Still, I do think there are problem areas in the decision. For example, the distinction between 'yelling' and 'speaking harshly' is a rather petty one - they both accomplish the same thing. Whether the voice is raised, or the tone is biting, it is essentially equally offensive, disrespectful, and demeaning. Profanity is often an indicator of essentially the same thing.

    Of course, "stern" is less problematic, and that's the adjective ultimately used by the judge. Still, on the whole picture drawn by the judge's reasons, that's not exactly what I see. Other employees also had the same perception of her 'yelling' or speaking in 'a tone', suggesting that the plaintiff wasn't alone, idiosyncratic, or unreasonable in perceiving the boss' approach as inappropriate or disrespectful. The judge also described an "edge", and remarked: "Clearly, it would be uncomfortable to be on the wrong side of her."

    That sentence seems difficult to reconcile with the important statement in paragraph 136: "the plaintiff’s subjective assessment of her situation is not relevant where the test is an objective one."

    The judge isn't wrong about workload, either...the fact of a disproportionate workload, alone, isn't problematic. Some people can handle more than others. Yet it seems fairly clear, reading the decision, that this plaintiff clearly couldn't handle her disproportionately high workload (and that this should have been clear enough to management). Obviously, she then ends up "on the wrong side of" the boss...and soon ends up on stress leave. True that a more detailed summary of the specific incidents would have been helpful, yet the inferences the plaintiff was asking the Court to draw seem reasonable.

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  2. If only the letters "J.A." followed your name.

    ReplyDelete