EMPLOYMENT LAW UPDATE - CONSTRUCTIVE DISMISSAL... EMPLOYEES MUST TREAT ONE ANOTHER CIVILLY, OR ELSE! An employer may be held liable for wrongful dismissal, even when an employee quits. In its simplest form, constructive dismissal means that a Judge will deem that the workplace has changed to such an extent, or the employer has changed the terms of employment to such an extent, that the job that the employee used to have no longer exists. If the changes in the workplace or job description are significant enough, this would be tantamount to the employer having fired the employee, thereby entitling the employee to quit and sue the employer for "constructive" dismissal. The effect is the same as if there had been actual wrongful dismissal by the employer, that is, the employee would be entitled to sue the employer for monetary damages. The Court determines how many months it should reasonably take for the employee to find alternate comparable employment based upon a number of factors and then awards the employee damages based upon the monthly remuneration that the employee was receiving while working for the employer. In addition to awarding money on account of the number of months that it should reasonably take the employee to find other employment, the Judge can also award damages for mental distress, on account of out of pocket expenses incurred by the employee as a result of the dismissal and punitive damages if the conduct of the employer has been high-handed. Constructive dismissal lawsuits are usually based upon an employer taking deliberate steps to change the nature of employment, in terms of substantially changing the job description or responsibilities, demoting the employee, significantly changing the level of remuneration or requiring that the employee unreasonably relocate. However, in a case recently decided by the Honourable Mr. Justice Dambrot of the Ontario Superior Court of Justice, the Court confirmed that when one employee treats another employee inappropriately, or otherwise dramatically changes the workplace environment, the aggrieved employee has the right to quit and receive compensation for constructive dismissal because the employer did not take steps to alter what had become an intolerable workplace environment. In this particular case, the Plaintiff had been a valued employee of the Defendant employer, for three years, when the employee quit and sued for constructive dismissal. Here is what happened. Everything was fine in the workplace, initially, and then the employer hired his uncle. The uncle, as it turned out, did his job well and became a highly valued employee, as was the Plaintiff. However, the uncle, from the day he was hired, had a dramatic effect on the workplace environment. He had an explosive personality, he was irrational at times, he neither listened to nor took directions well, he would have uncontrollable outbursts at company meetings, and he had difficulty working with women, in particular women who had any degree of authority. He would frequently use profanities and would go as far as to refer to women as "bitches". The Plaintiff, perhaps moreso than other employees, had a great deal of difficulty in dealing with the uncle. The uncle had burst into her office and made accusations against her, threatened her, and otherwise conducted himself in such a manner that the Plaintiff felt the need to lock herself in her office. At one point in time she even contacted the police. The problems with the uncle were brought to the attention of the employer, but the employer was incapable of resolving them, short of firing his relative which he was not prepared to do. The Plaintiff quit her job essentially because she could no longer take the stress in the office and found the derogatory remarks of the uncle to be intolerable even though they were not directed at her. However, before she quit, the employer tried to keep her on and promised her a $3,000.00 leaving bonus if she were to continue her employment to a specified date. The employee tried to continue on with employment, but could not do so. She quit and sued for constructive dismissal. The Judge stated that an employer owes a duty to its employees to treat them fairly, with civility, decency, respect and dignity, and that an employer who subjects employees to treatment that renders competent performance of their work impossible or continued employment intolerable exposes itself to an action for constructive dismissal. The Judge concluded that the Plaintiff was subjected to treatment that made the performance of her work impossible and her continued employment intolerable, even though the direct cause of this was not the actions of the employer. Her work environment had been poisoned by the disruptive presence of the new employee (the uncle) who subjected the Plaintiff to verbal harassment, threatening and intimidating tactics, unjustifiable attacks on her work performance, unreasonable demands, sexist and bigoted language, hostility towards women and more. Accordingly, the Judge stated that not only is an employer obliged to not treat an employee in a manner that renders competent work performance impossible or continued employment intolerable, but an employer has a broader responsibility to ensure that the work environment does not otherwise become so hostile or embarrassing as to have the same effect. An employer owes a duty to see that the work atmosphere is conducive to the well being of its employees and if the employer fails to prevent the harassment of an employee by co-employees it is a breach of this duty and can be deemed constructive dismissal. The employer in this case failed to fulfil its obligation to the Plaintiff to ensure that changes in the work environment brought about by the uncle did not render competent work performance by the Plaintiff impossible, or her continued employment intolerable. The Judge awarded the Plaintiff the equivalent of six months worth of employment remuneration, together with vacation pay and expenses that the Plaintiff incurred in seeking and obtaining alternate employment. The Judge also awarded the Plaintiff the leaving bonus to which the Plaintiff would have been entitled to receive had she stuck it out as long as the employer wanted her to remain. The Judge went further. He awarded the Plaintiff $3,600.00 in dental expenses which the Plaintiff incurred as a result of dental work that had to be done as a consequence of the stressful work environment leading to her grinding and ultimately breaking her teeth. Finally, he awarded the Plaintiff damages on account of the mental distress that the Plaintiff incurred as a result of what had transpired in the workplace. The conclusion that can be drawn from this case is as follows. As an employee, you are entitled to work in a relatively inoffensive office environment. If the employer does not takes steps to remedy conditions which arise that have the effect of significantly altering the workplace, the employer may be exposed to substantial monetary damages. The case to which I have made reference is known as Stamos v. Annuity Research et al, and is in the Court records at Toronto as being Court File Number 00-CV-193098SR. ALVIN STARKMAN

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