Workplace Sexual Harassment

Constructive Dismissal

The basic precept of a constructive dismissal case is there must be a fundamental or substantial change to the employment relationship.1

As more acutely stated by the Supreme Court of Canada in Potter, the test is as follows:

  1. There must be an express or implied term of the contract which has been breached; or
  2. In assessing the cumulative effect of the past acts of the employer, it must be shown that the employer has shown by its conduct that it no longer intended to be bound by the contract.

This second aspect of the test must allow a reasonable person to conclude that the employer has shown such an intent. The employee must show a “course of conduct pursued by the employer” which shows such an intent on a cumulative basis. The employee need not only point to an actual specific change in compensation or work assignments and such.

This issue is reviewed in more detail here.

It has followed from this premise that an employer which fails to provide a work place which is free from harassment may be subject to an assertion that such conduct has violated this implied term.2

The employer must “see that the work atmosphere is conducive to the well-being of its employees”.3

This is not a startling revelation of law. It is expected. Offensive conduct displayed by management may indeed allow for a successful constructive dismissal plea.4 The test should be an objective one which should not be lightly applied. It is essentially one of reasonableness, or more acutely “unreasonableness”. Continued employment must be made “intolerable”.

As stated by the Ontario Court of Appeal:

the court may find an employee has been constructively dismissed, without identifying a specific fundamental term that has been breached, where the employer’s treatment of the employee makes continued employment intolerable.

The refusal to investigate complaints made by the employee as set out in the sexual harassment policy and the degree of harassment suffered were found to meet this test.5 The gravity and duration of the adverse conduct will be important factors.

Given legislative inroads to establish and investigate complaints of workplace harassment and sexual harassment, this remedy is firmly entrenched.

It should not be surprising that conduct which is found to be sexually harassing may lead to a complaint of constructive dismissal in reliance upon the principles expressed in the above cases.

Much like the scale of misconduct which has been used to assess the seriousness of the sexual harassment in a human rights case or just cause defence, it is anticipated that not every action which may be defined as sexual harassment will give rise to a constructive dismissal finding.

While the fundamental issues may be well-established, the real issues of controversy will be the extent or the degree of the conduct which may be considered significant enough to be a dismissal in law.

There is no need to rely upon a policy to require the employer to investigate a complaint of sexual harassment or any other form of human rights violation. It is mandated.

In a case of peer to peer harassment, it is expected that the victim would be required to raise the issues to the employer requesting it to investigate the complaint in the modern context, given the requirement of the employer to have a harassment policy in place. With this in place,6 it would appear logical to expect a victimized employee to use the terms of it to cause an internal complaint before asserting a claim7, certainly for a constructive dismissal allegation in which case the consequences are dramatic.

A court will examine the facts of each case to determine if the harassment has reached the level of significance to allow for a constructive dismissal plea. In one such case, the degree of sexual abuse was seen not to allow for such a remedy unto itself, but did reach this grade when seen in the context of other abusive behaviours.8

The abusive conduct must be “serious” and absent exceptional circumstances, not be an isolated event.9

There must be a hostile or intolerable work environment shown by repetitive actions. This case illustrates the emphatic differences between the evidence required to support a civil plea and that required in the administrative human rights process of showing a “poisoned work environment”.

The ability of the complainant to prove the case will be dramatically easier in a complaint made under the human rights statute in which evidence by inferential deduction is allowed due to the acknowledgement that direct evidence of discriminatory conduct is rare.

Further the Court of Appeal’s statement looking to the intent of the employer is relevant is at odds with human rights jurisprudence which does not require a finding of intent to find discriminatory conduct.

In addition, under the code, the complainant must prove only that the offensive conduct is an influence and not the sole cause of the adverse conduct. The decision as to which forum should be used must pay heed to these factors.

It may be possible to argue that the conduct of the employer was such that it was in violation of the standards are required by the relevant human rights statute as a relevant consideration to support the constructive dismissal plea.10

The referenced case arose from a motion to dismiss on a point of law. This may be a standard a court may consider but it would do so based on the usual common law standards of proof.

In an unusual set of facts, the Ontario Superior Court found in favour of the plaintiff’s constructive dismissal plea in Colistro v Tbaytel et al. The employer had hired a prior employee who previously had been dismissed from its employ, in part, due to a complaint of sexual harassment brought by the plaintiff against this same person. This claim succeeded even though the employer had offered to transfer the plaintiff to an alternate physical location, however, one in which incidental contact between the two would likely follow. The Court of Appeal upheld this finding. Aggravated damages were awarded at trial and upheld on appeal of $100,000.