All employees are entitled to work in an environment that is free from harassment and discrimination. However, not all workplaces are created equal and harassment and discrimination often creep up in the workplace, causing what is known as a poisoned or toxic work environment.
It is important to note how harassment and discrimination are defined in the workplace for a better understanding of what creates a poisoned workplace.
First of all, the Ontario Human Rights Code (the “Code”) states, “Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offense, marital status, family status or disability.” It is prohibited to allow harassment in the workplace on any of the aforementioned grounds.
The Occupational Health and Safety Act, RSO 1990, c. 0.1 (“OHSA”), further defines workplace harassment as, “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought to reasonably be known to be unwelcome or workplace sexual harassment.” This definition is broad enough to cover all types of harassment that are prohibited by the Code.
There are many forms of discrimination and it can often be difficult to determine whether the behaviour is discrimination or not. The Ontario Human Rights Commission provides a clear definition of discrimination that includes, “not individually assessing the unique merits, capacities and circumstances of a person, instead, making stereotypical assumptions based on a person’s presumed traits and having the impact of excluding persons, denying benefits or imposing burdens.”
Based on the above, if you feel your workplace is hostile, unwelcoming, discriminatory, harassing, insulting or degrading you may be working in a poisoned environment and a court will likely find that the employer is responsible or has condoned the offensive behaviour, thus resulting in what is known as constructive dismissal.
Constructive dismissal occurs when an employer makes a fundamental, unilateral change to the terms of your employment. In the case of a poisoned workplace, the fundamental term of employment is that of a harassment and discrimination-free environment. If your employer fails to provide this to you or allows (condones) this type of behaviour in the workplace, they have breached their obligations to you allowing you to claim constructive dismissal. The constructive dismissal claim essentially allows you to claim that your employment has ceased as a result of the egregious behaviour and a termination package is owing to you.
The Ontario Court of Appeal in General Motors of Canada Limited v. Johnson, 2013 ONCA 502 (CanLII), has specifically stated that a successful constructive dismissal claim for a poisoned workplace needs to be repeated incidents that are serious in nature and must be assessed by a reasonable person to be considered serious and wrong. As a result, one incident would not be enough to be considered constructive dismissal.
Considering the specific terms required to meet a constructive dismissal claim for a poisoned workplace, contact Monkhouse Law today to determine your options before taking any steps with your employer. Learn more about our team or contact us for a free 30 minute phone consultation.
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