Workplace Investigations

Constructive Dismissal

The issue of constructive dismissal is reviewed in more detail here. The issue may arise in the context of a workplace investigation is whether the failure to investigate may be grounds for a constructive dismissal claim.

Fundamental Breach – Constructive Dismissal

Douglas Disotell was an hourly paid factory worker at the defendant’s factory in Ingleside, Ontario as a whey driver operator. He was employed for 16 years.

The failure of the employer to apply its harassment policy and respond fairly to the complaints made by the employee was seen as sufficient grounds for the plaintiff to assert that the employment relationship was unilaterally terminated in the Ontario Superior Court decision of Disotell v Kraft, written by Kane J.

The court agreed with the plaintiff’s plea that the ongoing harassment and the failure of the company to act upon its harassment policy caused a legal termination. An award of 12 months compensation was made. The court summarized the reasons for finding a constructive termination as follows:

Within the context of Farber v. Royal Trust Co., [1997] 1 S.R.C. 846 held a reasonable person in the same position as Mr. Disotell faced with the length of time during which harassment comments were being made and the severity thereof, would conclude that the term of his employment by which the employer was required to provide an environment free of harassment had been changed by the employer allowing the harassment to continue.

[106]      The failure of Mr. Bougie to effectively intervene and engage the harassment policy of the employer by non‑reporting of the complaints, caused this employee to withdraw from his employment within the context of Shah v. Xerox Canada Ltd., [1998] O.J. No. 4349.  The circumstances of this case as viewed objectively would result in a reasonable person in the position of the Plaintiff, not being expected to persevere in these employment conditions.

A similar theme was evident in the decision Pollak J. in Chandran v National Bank. Chandran had been employed with the Bank in excess of 18 years when he was advised that he was to be given an amended job position based on an attitude survey taken by the employer which revealed unflattering remarks made by his subordinates accusing Chandran of conducting himself in a bullying manner and making inappropriate comments to those reporting to him. 1

A broad description of the issues was given to Chandran, which lacked specific details. The court determined Chandran was constructively dismissed, a finding which was  influenced by the actions taken by the Bank in making adverse conclusions of his conduct without his input:

  Mr. Chandran testified   that he has lost all trust in the Bank to deal with him in a fair and professional manner.  I have already found that a reasonable person in similar circumstances would also lose trust and faith in his employer.  I find that the actions of the Bank in reaching such serious findings of misconduct, the imposition of discipline and the mandatory transfer to alternate positions (with lesser terms and conditions of employment) goes to the root of the employment contract and is a fundamental breach of the employment agreement, which constitutes a constructive dismissal.