In a recent decision, General Motors of Canada Limited v. Johnson, the Ontario Court of Appeal provided clarity on an employee’s burden of proof when alleging constructive dismissal based on a poisoned work environment.
The decision involved allegations of an alleged racist act by a fellow employee who had refused to participate in a training seminar presented by the employee. The allegations were investigated by the employer and no racism was found. The employee went on a medical leave of absence for two years due to the incident. When a company physician determined he was fit to return to work, he was offered positions in two different facilities. However, he refused these offers as it was possible that he might come into contact with the employee involved in the training incident. At this point, the employer considered the employee to have resigned from employment.
The trial judge found that the employee had been a victim of racism in his workplace and that he had experienced a poisoned work environment which resulted in a constructive dismissal. The employee was awarded $95,000 in wrongful dismissal damages as well as $40,000 in Wallace damages, less $15,000 for his failure to mitigate.
The Court of Appeal reversed the decision, finding there was insufficient evidence of racism and a poisoned work environment. As such, there was no constructive dismissal.
With respect to the allegations of racism, the Court of Appeal found that the trial judge had ignored important considerations in the evidence and drew unreasonable inferences from the evidence that he did rely upon. A key witness, the employee involved in the alleged training incident, had died prior to trial. The trial judge inferred from inconsistencies in his statements during the employer’s investigation that his actions must have been racially motivated. The Court of Appeal found the trial judge had ignored other important considerations and his inference was unreasonable.
It also found that the employee failed to establish a poisoned work environment. Whether or not a poisoned work environment has been created is an objective test. A poisoned work environment will be found only where serious wrongful behaviour is demonstrated. In most circumstances, a stand-alone incident will not suffice, as the hostile work environment must be persistent or repeated. The Court of Appeal found that even if the other employee’s actions in refusing the training were racially motivated, this alone does not lead to a poisoned work environment and a constructive dismissal. The employee had not established any systemic or institutional racism.
The trial judge had also focused attention on the manner in which the company sought the employee’s to return to work. The company had offered the employee two alternative positions at entirely separate facilities. The trial judge had found this to be a means of “bullying” the employee into returning to work. The Court of Appeal disagreed. The employee had not led any evidence supporting his continued claim for disability or indicating that he required workplace accommodation. Notwithstanding this, the company attempted to place him in different facilities where he was unlikely to have contact with the other employee. Furthermore, the employer’s continued offers of employment were inconsistent with the employee’s claim that the employer had repudiated the employment contract.
Every case alleging a constructive dismissal will be fact specific. However, the Court of Appeal makes clear in this decision that employees’ face a high evidentiary burden. In order to find a constructive dismissal based on a poisoned work environment, there needs to be a pattern of conduct. Only in the most egregious circumstances would a stand-alone incident suffice. In addition, the employer’s actions on a whole must be taken into account when determining whether the employment contract has been repudiated.
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