HR Resources Database

HR Resources Database April 2003 : 0-0

Courts Say: Take Responsibility for Ensuring A Kinder, Civil, Respectful Workplace or Risk Exposure to Damages for Constructive Dismissal and Tort Damages

Barbara G. Humphrey

Abstract

Emerging case law continues to create clear and substantial obligations for employers to take active steps to ensure that employees experience civil, kinder, gentler, respectful interactions from co-workers, supervisors and managers. Employers who make the mistake of treating uncivil or volatile interactions between co-workers or supervisors as personality conflicts are at serious risk. Employers who fail to effectively deal with persons in authority who provide direction that includes yelling, screaming, rudeness, demeaning, belittling or threatening conduct or communications are at risk.
There are a growing number of court and arbitral decisions defining clear common law standards for workplace conduct and workplace environments. These decisions require a civil, respectful, kinder, gentler workplace. Conduct inconsistent with these standards and expectations includes yelling, screaming, profanities, shouting, accusations, intimidation, aggressive, verbal behaviour, other aggression.

ONEROUS OBLIGATION FOR EMPLOYERS TO SECURE AND MAINTAIN A CIVIL, RESPECTFUL WORKPLACE

The courts are as serious about the standards of a civil, respectful workplace, as human rights tribunals are with respect to equality rights issues in the workplace. It is clear that employers, and their agents (persons in positions of authority - supervisors, managers) have significant responsibilities and accountabilities to ensure workplace contacts, interaction and direction consistent with the common law standards. Employers, supervisors and managers must prevent employee harassment and respond effectively to an employee's exposure to uncivil, disrespectful, volatile dealings at the hands of either co-workers or supervisors and managers.

A recent case - Stamos v. Annuity Research and Marketing Services Ltd., 18 C.C.E.L. (3d) 117 - delivers a clear message as to how not to deal with volatile dealings between employees; particularly where one employee is clearly the perpetrator of the volatile conduct and the other employee, the victim.

The case involved a constructive dismissal action by a former employee, a senior administrator, who resigned from her employment when her employment conditions became intolerable as a result of persistent exposure to the following types of conduct by a co-worker: subjected to profanity, shouting, accusations, intimidation, threats and aggression.

EMPLOYER'S MISTAKE: TREATING VOLATILE INTERACTIONS AS "PERSONALITY CONFLICT" AND RESPONDING BY ENCOURAGING THE TWO EMPLOYEES TO AVOID CONTACT

The employer had knowledge of the perpetrators volatile conduct and intervened on several occasions. However, the thrust of the employer's intervention was to encourage the parties to limit their contact with each other. Given that one employee, the volatile co-worker, was clearly the protagonist, persistently exposing the plaintiff to abusive communications, the Court concluded that the employer's response of equal treatment of the protagonist and victim was a complete abdication of responsibility by the employer. The Court concluded that "to treat the perpetrator and victim identically was unjust and unconscionable".

CAUTION: DON'T DISMISS VOLATILE EMPLOYEE INTERACTIONS AS PERSONALITY CONFLICTS

An employee's exposure to hostile and aggressive workplace interactions can result in a legal repudiation of the employment contract and constructive dismissal. The Court in Stamos held that as a result of the conduct the plaintiff was exposed to by a co-worker, her continued employment became intolerable. The Court also concluded that the treatment she was exposed to rendered competent performance impossible. The Court found that there was an unjustified repudiation of the employment contract, resulting in a constructive dismissal of the plaintiff employee.

COURT DEFINES CLEAR RESPONSIBILITIES AND ACCOUNTABILITIES OF THE EMPLOYER, SUPERVISORS AND MANAGERS

The Court's analysis highlights an employer's significant responsibility to proactively take charge of the quality of the work environment and workplace interactions. This responsibility includes effectively responding to any bullying, uncivil interactions, or abusive conduct in the workplace, whether it be by co-workers or by supervisors or managers. Effective intervention demands discipline and other interventions to eliminate the unacceptable conduct.

The Court articulated the employer's responsibilities in the following terms:

  1. Employer has a duty to ensure that employees are treated fairly, with civility, decency, respect and dignity.
  2. The employer has a broad responsibility to ensure that the work environment does not become hostile, embarrassing or forbidding.
  3. The employer has a duty to ensure the work environment is conducive to the well-being of employees.

The Court also reinforced the responsibilities and accountabilities of supervisors and managers: they owe a duty to those working under their authority to treat them fairly and not subject them to harassment. The duty of the employer, supervisors and managers extends to ensuring that no member of the workplace community is subjected to conduct below these common law standards by anyone in the workplace.

RISK OF LIABILITIES FOR EMPLOYERS AND PERSONS IN POSITIONS OF AUTHORITY IN CONNECTION WITH FAILURE TO MAINTAIN CIVIL, RESPECTFUL WORKPLACE

Damages for Constructive Dismissal

In the Stamos decision (and in prior court decisions), the Court reasoned that there is a repudiation of the employment contract, ergo a constructive dismissal, where the employer and/or its agents fail to deliver the implied condition of a civil and respectful workplace. The constructive dismissal occurs when the work environment becomes intolerable and/or the work environment renders competent performance by the employee impossible.

It should be noted that the while the conduct in the Stamos case was particularly aggressive and persistent, this has not been the case in other decisions. There have been several decisions where repeated supervisory screaming at employees and threats of termination have been determined to be a fundamental breach of the implied term of the employment contract that employees will be treated with civility, decency, respect and dignity.

TORT DAMAGES: FOR MENTAL DISTRESS, INTENTIONAL INFLICTION OF EMOTIONAL HARM

In addition to potential damages for constructive dismissal, employers and persons in authority who fail to deliver the implied term of a civil, respectful, decent workplace risk exposure to tort damages in connection with the harm inflicted on the victim employee who is exposed to uncivil, demeaning, disrespectful, hostile or intimidating workplace interactions.

In Stamos, the damages included approximately $18,000 in compensation (six months' pay in lieu of notice, leaving bonus, benefits) and an additional $2,500 for tort damages for mental distress.

MEETING THE EMPLOYER'S OBLIGATION TO ENSURE A CIVIL, RESPECTFUL WORKPLACE

Employers are well-advised to take proactive steps to ensure that everyone in the community understands the new standards and their individual responsibilities for what they bring to the workplace. The following steps can assist in positioning your organization to discharge its obligations with respect to a civil, respectful workplace and avoid the risk of costly liabilities:

1. Educate Your Community With Respect To The Standards

Such conduct exposes the individuals who engage in such conduct and the employer to serious risk of significant liabilities.

The development and effective implementation of a workplace conduct policy/guideline is a useful starting point in sensitizing all members of the workplace community to their obligations with respect to how they interact and communicate in the workplace.

2. Educate Your Supervisors and Managers Regarding Their Responsibility for Securing a Civil, Respectful Workplace

Supervisors and managers have dual obligations; obligations with respect to the quality of the communications and direction they bring to the workplace and obligations for what all members of the workplace community are exposed to by co-workers, lead hands, supervisors or managers. Supervisors and managers require clear knowledge and clear direction on the appropriate action steps to take to ensure that they are contributing to, reinforcing and enforcing a civil, respectful, kinder and gentler workplace.






Positioning Your Company To Meet The Challenge Of Securing A Civil And Respectful Workplace: For more information, specifically information on developing an effective policy and in-house training programs for managers and supervisors, please contact Barbara Humphrey at bhumphrey@sbhlawyers.com or 416-862-1616, ext. 290.

About the Author(s)

Barbara Humphrey is a Partner at Stringer, Brisbin, Humphrey law firm in Toronto.

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