An employee has the right to quit and claim damages for constructive dismissal if an employer’s treatment of the employee was so bad that it makes continued employment intolerable.
What is a poisoned workplace?
An employer who creates intolerable working conditions can create a poisoned workplace. Workplaces become poisoned for the purpose of constructive dismissal only where serious wrongful behaviour is demonstrated.
Except for particularly egregious stand alone incidents, a poisoned workplace is not created unless the serious wrongful behaviour which creates a hostile or intolerable work environment is persistent or repeated.
Who must prove that a poisoned workplace exists?
The employee bears the onus of proving that a poisoned workplace exists. An employee must also establish that the employer’s persistent conduct has rendered his or her continued employment intolerable.
What test do the courts apply to determine whether a poisoned workplace exists?
There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment has been created.
A case where a poisoned work environment was found to exist
In a 2000 case, a judge found that an employee was constructively dismissed because, among other things, the employee’s manager raised unwarranted performance concerns, the employee received a number of unwarranted written warnings, and he was placed on probation without justification and thereafter his manager became “more authoritarian, impatient and intolerant” and “subsequently acted impulsively and without justification.”
A case where a poisoned work environment was found not to exist
In a 2014 case, the Ontario Court of Appeal considered a claim by an employee who alleged he was constructively dismissed because of a poisoned work environment caused by racism. This court disagreed with the trial judge who concluded that a reasonable person would conclude that the circumstances were such as would justify the employee to consider he had been constructively dismissed from his employment.
In reaching this conclusion, the Court of Appeal did not find that the offending conduct was persistent and repeated, and found no evidence that the employer intended to repudiate the employment contract.
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