An employer must ensure that an employee’s work environment is not so hostile that work becomes impossible or continued employment intolerable.An employee may claim constructive dismissal where an employer breaches this responsibility, and if successful, may be awarded pay in lieu of termination notice and, possibly, aggravated and punitive damages.
In the recent decision Baraty v Wellons Canada Corp.,the BC Supreme Court (the “Court”) declined to find constructive dismissal on the facts, and in doing so, clarified employers’ responsibility to maintain work environments free from “workplace poisoning”.
The leading Supreme Court of Canada case on the topic, Potter v New Brunswick Legal Aid Commission, identifies two “branches” of constructive dismissal. The first branch focuses on whether a unilateral act by an employer, such as a demotion, substantially alters an employment contract such that an employee is effectively constructively dismissed. The second branch asks whether the employer’s course of conduct could lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the employment contract. The claim of constructive dismissal in Baraty falls under the second branch – alleging the employer was permitting “workplace poisoning”.
The employer in Baraty was Wellons Canada Corp. (“Wellons”), a manufacturer and supplier of wood and gas powered energy systems and related equipment. The plaintiff, Reza Baraty (“Baraty”) was, until June, 2017, employed by Wellons as a chief estimator, whose duties included preparing quotes for the sales department, assigning work, monitoring work flow, and scheduling vacations. In addition, Baraty reviewed estimates performed by the only other estimator in his department, Cris Corilla (“Corilla”), who in turn checked Baraty’s work.
Baraty had a remarkably difficult relationship with Corilla. The two primarily communicated by email, even though their work stations were physically proximate. Their communications were often curt and terse, with an unfriendly tone. On one occasion, Corilla publicly swore at Baraty and made inappropriate comments, which resulted in Wellons issuing Corilla a verbal warning for violating Wellons’ harassment policy. Baraty twice requested that Corilla be suspended or terminated because of his alleged disrespect, mistreatment, and insubordination. Wellons denied both requests.
In June 2017, Baraty claimed constructive dismissal under both branches of the Potter test. Under the first branch, he argued that Wellons eroded his position as chief estimator and head of the estimating department to the point where his position and the department no, in effect, longer existed. Under the second branch, he claimed that Wellons’ failure to deal with Corilla’s harassment and bullying rendered the work environment intolerable.
The Court dismissed Baraty’s claim under both branches of the Potter test. In addressing the demotion claim, the Court found that Baraty’s role as chief estimator was neither eliminated nor fundamentally changed. In addressing the “workplace poisoning” claim, the Court reiterated three important principles:
1. Some degree of conflict in the workplace is expected.
Disagreements between coworkers, especially ones who work closely, are inevitable. In this case, Baraty and Corilla had to review each other’s work, which naturally led to criticism and conflicting opinions. However, Wilson J. concluded: “the mere fact that there were disagreements between the two does not render the workplace to be intolerable.” The Court clarified that while the onus is on the employer to maintain a work atmosphere that is conducive to the well-being of its employees, that duty does not require the employer to eliminate conflict altogether.
2. Contribution to conflict can detract from a constructive dismissal claim.
Baraty claimed that he was unable to perform the functions of his job because Corilla was bullying and harassing him, and Wellons acquiesced to such behaviour. The Court rejected this argument, noting Baraty’s contribution to the conflict between himself and Corilla. The Court noted, in particular, Baraty’s frequent use of a condescending tone and his propensity for ending disagreements in written correspondence by reaffirming his supervisory role over Corilla. These factors led the Court to find that “each contributed to the dysfunctional relationship” and “viewed objectively, there was no harassment and bullying.”
Notably, Court inferred from Baraty’s assertion of authority that he contributed to the conflict between him and Corilla. Where a lower-ranking employee alleges workplace poisoning, it remains to be seen what actions may constitute contribution if the employee is in a power imbalance with the antagonist, since they lack the same power from which a similar contribution to conflict could be inferred.
3. There is no constructive dismissal if the employee objectively can continue working.
The Court affirmed that the test for rendering a workplace intolerable is a high, objective one. A court must determine “whether the abusive treatment of the employee is so obscene as to amount to repudiation of the employment contract” and “whether a reasonable person in the circumstances should not be expected to persevere in the employment.”Wilson J. found that while the work environment in the estimation department was strained, it had not deteriorated to a point that barred Baraty from performing his job.As such, Baraty was unable to claim constructive dismissal.
An employer’s responsibility to ensure that a work environment is not so intolerable that it becomes impossible for employees to perform competent work is not without limit. Some level of disagreement is expected in the workplace, and an employer’s duty is discharged where a reasonable person can be expected to continue working despite such conflicts.