A decision released last week from the Ontario Labour Relations Board (the “Board”) has re-emphasized the high threshold required to find that the conduct of an employer amounts to constructive dismissal. In the decision of Julie C. Malboeuf v. PR Dental Facility Ltd., Julie Malboeuf brought an application under the Employment Standards Act, 2000 asserting that the Employer Standards Officer erred in its decision not to grant her termination pay. Ms. Malboeuf alleged in her application that she had been constructively dismissed and it is on that basis that she asserts her claim for termination pay.
Ms. Malboeuf worked as a Dental Hygienist at a practice owned by the Employer, Dr. Patrick Roy. In late 2012, Ms. Malboeuf quit her employment without notice. In her application, she alleged that Dr. Roy had been acting in an intimidating and aggressive manner in the office. Ms. Malboeuf was particularly upset by incidents including Dr. Roy speaking to her in a loud voice in front of a patient criticizing her for not having charted a dental procedure, accusing her of keeping her patients waiting, taking issue with how she had been recording her lunch breaks, and throwing a dental instruments into a tray in her presence. The Board noted that much of the testimony provided by Ms. Malboeuf was contradicted by witnesses for the Employer.
The Board outlined the current legal test for advancing a successful claim for constructive dismissal. It must be determined whether a reasonable person in the circumstances should not be expected to persevere in the employment relationship. The case law recognizes that this is a test that should not be applied lightly, as employers are entitled to a degree of latitude in managing its operations and being critical of unsatisfactory work.
The Board provided examples from case law on circumstances where an employer’s conduct towards an employee were objectively found to be incompatible with the continuation of an employment relationship:
- The regular use of profanity or racial or other slurs directed towards the employee;
- Often uttered gratuitously, that is not uttered in a context related to overseeing the employee’s work;
- Sometimes coupled with menacing physical gestures;
- Possibly expressed in a raised voice; or
- Belittling or demeaning (rather than merely criticizing) the employee or his or her work performance in front of other employees.
In the circumstances surrounding Ms. Malboeuf’s employment, the Board concluded that a claim for constructive dismissal was not met. The Board noted that the circumstances did not involve any of the abovementioned features, and all interactions between the employer and Ms. Malboeuf were with regards to work-related matters.
The Board has re-emphasized that the test for determining whether an employer’s actions amount to constructive dismissal is one that should not be applied lightly, and has provided guidance for employers on appropriate behaviour in the workplace when managing its operations.
This article was written with the assistance of Nicole Buchanan, summer student.