September 26, 2013 By: Alison McEwen
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In a recent decision, General Motors of Canada Limited v. Johnson, 2013 ONCA 502, the Court of Appeal for Ontario outlined the test required to show that a workplace is poisoned for the purposes of constructive dismissal.

Mr. Johnson worked at GM for eight years, from 1997 until 2005. In August 2005, Mr. Johnson was required to take a medical leave of absence from work, claiming disability due to discriminatory treatment in the workplace based on racism. Mr. Johnson was never able to return to work and eventually sued GM for constructive dismissal.

The matter went to trial, and the trial judge held that GM was liable to Mr. Johnson for damages consisting of approximately $95,000 for wrongful dismissal, special damages in the sum of $40,000, and Wallace damages in the amount of $40,000. The sum of $15,000 was deducted for Mr. Johnson’s failure to mitigate his damages.

The Court of Appeal for Ontario overturned this decision. They held that the events could impact “the dignity, self-worth and health of both the alleged victim and those accused of racist conduct”, and that, “[a]n allegation of this type can reverberate for many years after the incident or incidents in question, with potentially long-term consequences for all concerned”.

The Court found that workplaces are poisoned only where serious wrongful behaviour is demonstrated. The plaintiff has to prove that the workplace was poisoned, and that test is an objective one: even where a plaintiff subjectively feels, or even genuinely believes, the workplace is poisoned, this is insufficient evidence. “There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment had been created”.

Additionally, except for when a single incident is particularly egregious, stand-alone incidents will not suffice. “[A] poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated”.

The Court of Appeal noted that there was no question that Mr. Johnson genuinely believed he had been the victim of racism, but there was no direct evidence to support that finding. Without a finding the workplace was poisoned by racism, Mr. Johnson’s constructive dismissal claim failed.

With regards to Mr. Johnson’s refusal to return to what he perceived as a racist workplace, it is concerning that the Court found that Mr. Johnson “did not have the right to dictate where he would work or the employment role he would assume”. If an employee is unable to meet the objective test to demonstrate a poisoned workplace, the employee is left with few options. The employee is in the undesirable position of returning to a workplace he or she feels is racist, or quitting.

Before alleging that a workplace is poisoned, it is prudent for employees to seek a legal opinion. The objective standard is a technical legal one, and for an employee immersed in the workplace, it may be difficult to remove him or herself and view the larger picture objectively.

Conversely, employers should be careful of taking too much leeway from this decision. Here, GM performed three separate investigations into the complaints, provided a mandatory session on racism in the workplace, and required an apology be made to Mr. Johnson. These actions are what prevented a finding that the workplace was objectively poisoned.

Employers must not ignore issues in the workplace and must actively take steps to eliminate workplace harassment of any kind. It is important to have a policy, and provide training to employees on that policy, as well as to have mechanisms in place to ensure problems are caught early and properly dealt with.  When a complaint is brought forward, employers must take it seriously and initiate the proper investigation.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law