"Thou shalt love thy neighbor as thyself."
The Bible (Book of Leviticus)
At work, we’ve probably all had the experience of a personality conflict with a co-worker. It’s almost inevitable that this will happen at some point to all of us (some of us more than others).
When it does happen, and attempts to resolve it are unsuccessful, what can a person do? A recent B.C. court decision suggests that, if you can’t love your workplace neighbour, you’d best start looking for a job elsewhere.
What Is A Constructive Dismissal?
When an employer unilaterally imposes substantive changes to an employment contract, the employee sometimes has the right to treat those changes as a termination. Such a “constructive” dismissal is every bit as real as if the employee were actually notified of termination, and gives rise to the same right to claim damages in lieu of notice. Think of it as a termination by actions rather than by words.
Not every imposed change, however, will amount to a constructive dismissal. The change must be one which is substantial and which goes to the heart of the employment relationship such as a transfer, demotion, a substantial reduction in wages, an unpaid layoff, etc. It can also include a set of circumstances which make the ongoing employment relationship intolerable.
Examples of this include situations of a “poisoned work atmosphere”, of employers requiring employees to break the law, of employers’ activities reflecting poorly on an individual’s character, etc. But, the situation would have to be quite severe for it to amount to a constructive dismissal.
If the changes imposed amount, at law, to a constructive dismissal then the employee is entitled to walk away from the employment relationship and claim payment of damages.
Why Most People Won’t Claim Constructive Dismissal
In practice, numerous factors minimize the likelihood of an employee launching a constructive dismissal claim. Most importantly, the onus is on the employee to adopt the stance that his or her employment has been constructively terminated.
This is a high-stakes decision which can be very difficult to make correctly because there is no list of the specific criteria by which a constructive dismissal may be identified or measured. The only way to find out if a constructive dismissal has occurred is to resign from the employment and sue for damages.
The outcome of this roll of the dice will be determined when a judge rules on the situation - a year or two later. This takes money and, in the meantime, the employee will be deprived of a stream of income. This may be the most powerful influence limiting the likelihood of constructive dismissal claims – people just don’t walk away, lightly, from their source of income and start racking up legal fees.
Baraty v. Wellons Canada Corp.
In a recent decision, B.C.’s Supreme Court highlighted these risks for Reza Baraty in his claim against Wellons Canada Corp.
In essence, Mr. Baraty experienced an ongoing personality conflict with a co-worker. Along the way, Mr. Baraty made various accusations about his co-worker’s activities and repeatedly demanded that Wellons discipline or fire the co-worker.
Wellons attempted to address the interpersonal issues - ultimately to no avail - and the dysfunctional relationship persisted. In mid-2017, Mr. Baraty asserted that he had been constructively dismissed.
Justice Wilson of the Supreme Court neatly summarized the law relating to how an employer is required to treat employees (“An employer has a duty to see that the work atmosphere is conducive to the well being of its employees.”) and what can happen if it fails to abide by this duty (“An employer who subjects employees to treatment that renders competent performance of their work impossible or continued employment intolerable exposes itself to an action for constructive dismissal.”) and emphasized that the “test for whether a workplace has been rendered intolerable is a high one”.
Justice Wilson concluded that the “court is required to assess whether, on the totality of the evidence, the abusive treatment of the employee is so obscene as to amount to repudiation of the employment contract.”
Applying these principles to Mr. Baraty’s troubled experience with his co-worker, Justice Wilson determined that the “mere fact that there were disagreements between the two does not render the workplace to be intolerable…” He found that Wellons “handled [Mr. Baraty’s] complaints promptly and with due consideration” and “did not rationalize or condone [the co-worker’s] conduct when it was inappropriate.”
Ultimately, while the working environment was “strained due to the antagonistic approach” both Mr. Baraty and his co-worker took towards each other, “it had not deteriorated to the point that it rendered performance of [Mr. Baraty’s] job objectively intolerable.”
What Does Baraty’s v. Wellons Mean?
The outcome – almost 2 years after he had asserted that he had been constructively dismissed – was that his claim was dismissed. No constructive dismissal had occurred and no damages were payable.
The relationship with his co-worker was poor, to be sure, but Wellons was ultimately not responsible for the fact that the two couldn’t manage to get along. In hindsight, Mr. Baraty would have been well-advised to simply look for employment elsewhere and to move on with his career rather than attempting to obtain damages from Wellons.
Sometimes, if you can’t “love thy neighbour”, it’s best to take your love elsewhere.
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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.