Action for constructive dismissal unsuccessful where employee created hostile workplace

October 15, 2012 Alison J. Bird Employee Relations, Employment/Labour Standards, Human Resources

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The British Columbia Supreme Court recently expressed disapproval of a claim for constructive dismissal on the basis of negative treatment where the plaintiff was an active participant in the creation of the toxic work environment. In Danielisz v. Hercules Forwarding Inc., 2012 BCSC 155, a former employee claimed that she was unfairly picked on and ostracized by other staff. She alleged that this caused her to require a medical leave due to stress, and led to her constructive dismissal.

The Court affirmed the principle that in order for negative behaviour toward an employee to constitute constructive dismissal, it had to be such as to render continued employment beyond what an employee was reasonably expected to bear. The Court unequivocally held that the plaintiff had not met this standard. It found that although the working environment was “unpleasant”, she had made no efforts to improve it before alleging constructive dismissal. Moreover, she had “engaged in ‘poisoning the working environment’ as much as she was ‘the targeted employee'”. (para 90)

The plaintiff, a supervisor in a small office, was rude to other employees and mocked her co-workers behind their backs. Further, the plaintiff participated in, and sometimes initiated, communications that were designed to increase the dissension and conflict in the workplace. The Court found that although other employees contributed to the hostile environment, it was the plaintiff who set the tone for the office.

The Court emphasized that “not every workplace blow-up automatically results in a poisoning of the working environment or in the constructive dismissal of the targeted employee.” (para 89) The circumstances in this case were not sufficient to justify constructive dismissal, and the employer had not breached a fundamental term of the employment relationship. Further, the Court held that although the employer had clearly evinced an intention to maintain the employment relationship, the plaintiff had no genuine intention to return to work. Therefore, it concluded that she had resigned from her position.

This case indicates that there is a high threshold for constructive dismissal on the basis of negative treatment. The decision suggests that courts will not allow actions for constructive dismissal merely because the working environment is unpleasant. Rather, the employee must be able to show that the treatment is so obscene as to amount to repudiation of the employment contract, and that no reasonable person would be expected to persevere in the environment.

Alison Bird
Lawyer, Cox & Palmer

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Alison J. Bird

Employment Lawyer at Cox & Palmer

Alison Bird is a lawyer practicing in Halifax with the Atlantic regional law firm, Cox & Palmer. Alison is growing her practice in the areas of labour & employment law and litigation. Alison is a frequent presenter on employment law topics and recently presented on the challenges being faced by employers dealing with changing demographics in the workplace. Read more

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co-workers, common law, constructive dismissal, employment contract, employment law, fundamental term of the employment relationship, hostile work environment, hostile workplace, intention to return to work, negative treatment, Notice of termination, repudiation of the employment contract, resignation, resigned from position, terminations, wrongful dismissal

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