The Test for Toxicity: What Constitutes a Poisoned Workplace?

With the recent report of a toxic work environment at Rideau Hall and the subsequent resignation of former Governor General Julie Payette, the issue of what constitutes a poisoned workplace is front of mind for many employers. When are interpersonal tensions and conflict between colleagues “normal”?  When do they rise to the level of “toxic” and trigger rights to legal recourse and remedies?

Legal Test

Employees are entitled to work in a respectful environment which is free from harassment, bullying and discrimination.

A poisoned workplace may be found where the atmosphere has become untenable for employees due to harassment, bullying or discrimination.  Such a workplace will often result out of repeated mistreatment; it may, however, also be the consequence of a single serious incident of off-colour, untoward or improper conduct.

The legal test for whether the workplace is poisoned is an objective one:  there must be evidence which, to the unbiased, disinterested and unattached bystander, would support the conclusion that a toxic work environment has been created.

It is not a defence for the alleged perpetrator to offer as an excuse – as Ms. Payette and Prime Minister Justin Trudeau a couple of years before her tried to do – that “we all experience things differently”.  That is an unsatisfactory and inadequate explanation or justification for conduct which is alleged to be harassing, bullying or discriminatory.

Allegations of a poisoned workplace can arise in different ways such as an action in court for constructive (wrongful) dismissal or a human rights claim of discriminatory harassment.

Constructive Dismissal Due to a Toxic Workplace

An employee may claim constructive dismissal when an employer substantially changes a fundamental or essential term of his or her employment contract (without agreement) and essentially leaves the employee with no choice but to leave his or her employment.  An employee may claim the workplace atmosphere had become so poisonous that quitting or resigning was the only option, and is now owed damages for dismissal.

The B.C. Supreme Court addressed such a claim in Baraty v. Wellons Canada Corp., 2019 BCSC 33.  In that case, the plaintiff alleged a co-worker was repeatedly rude, hostile and insubordinate, and the employer failed to adequately address the problem and forced him into an early retirement.

The Court found that while communications between the two employees were often curt, terse and unfriendly, the plaintiff also contributed to the dysfunctional relationship.  In the view of the Court, the employer acted promptly and with due consideration in addressing the plaintiff’s complaint and, viewed objectively, there was no bullying and harassment and the workplace was not so poisoned that the plaintiff could not perform the functions of his job.  The Court dismissed his claim.

In Baraty, the Court provided a helpful summary of the test for constructive dismissal due to a toxic workplace:

• The Court is required to assess whether, on the totality of the evidence, the abusive treatment of the employee was so obscene as to amount to repudiation of the employment contract.
• Unfriendliness, confrontations between co-workers or even some hostility and conflict will not amount to constructive dismissal where the employee is still able to perform his or her work.
• The threshold for a claim of constructive dismissal based on the employer’s conduct in the workplace is whether a reasonable person could not be expected to persevere on the job under all of the circumstances.

Human Rights Claim of Discriminatory Harassment

Under human rights legislation, a toxic work environment is one where unlawful discrimination, bullying or harassment based on a prohibited ground, e.g. sex, race, disability or sexual orientation, becomes part of the employee’s workplace.

The B.C. Human Rights Tribunal’s recent decision in Jones v. B.C. Clinical and Support Services Society and another, 2020 BCHRT 99 (Chen) sets out the test and factors which the Tribunal will apply and consider when determining whether there has been discrimination due to a poisoned workplace:

• There must be evidence that, for the reasonable bystander, would objectively support the conclusion that a poisoned workplace was created.
• Subjective feelings or even genuinely-held beliefs are of limited to no usefulness in the analysis.
• Even a single statement or incident, if sufficiently serious or substantial, can result in a poisoned environment.
• A poisoned workplace can be created by the comments or actions of any person, irrespective of his or her position of authority or status in a given environment.

In Jones, the Tribunal dismissed the claim of a poisoned workplace.  It found that the complainant’s allegations were not substantiated and the employer had adequately addressed the concerns in the workplace, including by hiring an investigator to inquire into and review the complaint.

Takeaways for Employers

• Recognize that not every workplace interaction which an employee finds to be unpleasant will rise to the level of a toxic work environment.
• Avoid claims of a poisoned workplace by having in place a robust, well-considered respectful workplace policy which prohibits unlawful harassment, bullying and discrimination and clearly sets out the procedure for making and investigating complaints. In addition, ensure that employees are aware of and trained on the policy, and carry out refresher training on a regular basis.
• If a claim of a toxic workplace is made, take it seriously. Such a claim can lead to costly litigation and significant damages awards. Investigate the complaint, including by engaging an independent, qualified investigator as or when necessary, and clearly and accurately document the process.

 

Jacqueline D. Gant is a lawyer with the Vancouver-based employment and labour law firm of Roper Greyell LLP and practises in all areas of employment, labour and human rights law.  She provides strategic advice to employers concerning the management of workplace issues in both union and non-union environments, including discipline and dismissal cases, collective agreement interpretation, accommodation and workplace policies.  Jacqueline can be e-mailed at jgant@ropergreyell.com.

James D. Kondopulos is a founding member and partner (practising through a law corporation) at Roper Greyell.  He was named by Lexpert as one of Canada’s leading lawyers under 40 and is ranked as a leading employment lawyer in the Canadian Legal Lexpert Directory.  He is also recognized as a leader in the area of employment and labour law in Chambers Canada, Who’s Who Legal and Best Lawyers International, Canada.  James can be reached by e-mail at jkondopulos@ropergreyell.com. 

For more information about Jacqueline and James and the work they do at Roper Greyell, please visit www.ropergreyell.com.

While every effort has been made to ensure this article is accurate, you are urged to seek specific advice on matters of concern and not to rely solely on the contents of this article.  The article is meant for general information purposes only and does not constitute legal advice.