An employment law blog for employers and employees.
Published by Sean Bawden of Kelly Santini LLP.
T. 613.238.6321 | sbawden@kellysantini.com | www.kellysantini.com

Wednesday, 7 August 2013

What is a Poisoned Workplace?

What is a poisoned workplace under Ontario law? A recent case from the Court of Appeal for Ontario, General Motors of Canada Limited v. Johnson, 2013 ONCA 502, in which a worker's claim for damages for constructive dismissal following allegations of a poisoned work environment was dismissed, provides a good reminder for the legal elements of such a definition.

Facts in General Motors of Canada Limited v. Johnson


The facts in Johnson are a bit more involved than is necessary for this post. In essence, Johnson, a black man, alleged that he had been constructively dismissed from employment on account of a workplace poisoned by racism.

Following a trial of the case, the Honourable Justice Alfred J. Stong found that GM's workplace was in fact poisoned by racism and awarded the employee damages of almost $160,000. GM appealed to the Court of Appeal for Ontario.

Reasons for Decision from Court of Appeal


In overturning Justice Stong's ruling, the Honourable Justice Cronk writing for the Court of Appeal, wrote that:
[4] An allegation of discriminatory treatment in the workplace due to racism is a serious claim that implicates the reputational and employment interests of the claimant, as well as those of the alleged perpetrators. It can also affect the dignity, self-worth and health of both the alleged victim and those accused of racist conduct. An allegation of this type can reverberate for many years after the incident or incidents in question, with potentially long-term consequences for all concerned.
[5] No less serious are judicial findings of racially-motivated conduct in the workplace and a poisoned work environment due to racism. 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.
After reviewing Justice Stong's findings of fact, Justice Cronk held that although there was "no reason to question that Johnson genuinely believed that he had been the victim of racism in his workplace," the evidentiary record in this case did not support the trial judge’s findings of racism, a work environment poisoned by racism and, hence, Johnson’s constructive dismissal.

The Law of Poisoned Workplaces


If the Court of Appeal agreed that there was no reason to question that Mr. Johnson genuinely believed that he had been the victim of racism in the workplace, why was his case dismissed? Because the law requires that the racism be objective.

Writing for the court, Justice Cronk wrote that:
[66] Workplaces become poisoned for the purpose of constructive dismissal only where serious wrongful behaviour is demonstrated. The plaintiff bears the onus of establishing a claim of a poisoned workplace. As the trial judge recognized, the test is an objective one. A plaintiff’s subjective feelings or even genuinely-held beliefs are insufficient to discharge this onus. There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment had been created.
[67] Moreover, except for particularly egregious, stand-alone incidents, 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 repeated.
Applying the facts to the objective standard Justice Cronk held that the record did not support Mr. Johnson's claims of a poisoned work environment.

In reviewing the facts, Justice Cronk made one other observation worthy of note. According to the decision, Mr. Johnson had complained that GM had attempted to "bully" him into returning to the workplace in which he had been subjected to racism. Mr. Johnson refused to return to that hostile workplace as he felt it was inappropriate. In reviewing Mr. Johnson's decision not to return to the hostile working environment Justice Cronk wrote that:
[90] Johnson did not have the right to dictate where he would work or the employment role he would assume on his return to work.

Commentary


The decision is important for its reminder of the test for poisoned workplaces. It is worth noting that the test is an objective, not subjective, one, meaning that even if the employee honestly believes that he has been subjected to racism, unless those feelings are objectively "reasonable," the employee has no legal remedy.

Of greater interest is Justice Cronk's comment about employees not having the right to dictate where they will work or the employment role they will assume. This comment is important as it is not uncommon for employees to attempt to refuse to return to a hostile or discriminatory working environment. One inference from Justice Cronk's decision is that if an employee honestly feels harassed by discriminatory behaviour, the only remedy available to employees is to quit and claim constructive dismissal damages. However, as the Johnson case demonstrates, unless the employee can satisfy the court that the conduct was objectively unreasonable, even that claim will fail leaving the employee with no remedy at all.

Takeaways for Employees


The takeaway for employees is that before one alleges that a workplace has been "poisoned" or "made toxic" it would be prudent to seek a professional legal opinion. Meeting the objective standard is difficult, and as the Johnson case demonstrates, even if you honestly believe that you have been subject to harassment, unless you can demonstrate that the conduct is objectively unreasonable the case may fail. The experienced, honest, and straightforward employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to you.

Takeaways for Employers


As the Court of Appeal observed, judicial findings of racially-motivated conduct in the workplace and a poisoned work environment due to racism are very serious findings for any employer. No employer wants to be on the losing side of such allegations. At least part of the reason that GM was successful in this case was no doubt GM's diligent attention to and investigation of Mr. Johnson's complaints.

As several other cases considered by this blog have demonstrated, it is easy to get human rights wrong. Getting such cases wrong can be quite costly for employers.

Accordingly, if you are an Ontario employer and you suspect that you have a problem in your workplace, or if one of your employees has made an allegation of a poisoned workplace, it would be prudent to seek a professional legal opinion from an experienced employment lawyer. The experienced, discrete and cost-effective employment lawyers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.

--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden, publisher of the law blog for the suddenly unemployed, 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, and part-time professor at Algonquin College teaching Trial Advocacy for Paralegals. He is a trustee of the County of Carleton Law Association for 2013.


No comments:

Post a Comment