When Workplace Arguments Heat Up: The Unintentional Dismissal

Previously printed in the LexisNexis Labour Notes Newsletter.

The importance of maintaining composure in the heat of the moment, even in the face of insubordination or other defiant employee behaviour, is highlighted in Sweeting v. Mok, 2017 ONCA 203.

Facts

In this case, the plaintiff was a nurse employed by a doctor in a small medical practice. The plaintiff had worked for the defendant for over 22 years when a dispute arose between them over the defendant’s suggestion that the clinic’s medical files had to be converted to electronic format. This would have resulted in a significant workload increase for the plaintiff.

After a heated conversation, the defendant said to the plaintiff, “Go! Get out! I am sick of coming into this office every day and seeing your ugly face.”  The plaintiff left work and did not return.

The plaintiff took the position that the above words meant she had been discharged and sued for wrongful dismissal or, in the alternative, constructive dismissal.

Argument and Decision

The plaintiff argued that the harshness and finality of the words used, in the context of a small workplace, created a situation where the defendant’s words could only be viewed as termination of employment. The defendant denied terminating the plaintiff’s employment and suggested that because she did not return to work, she had resigned.

In spite of finding that the defendant did not intend to dismiss the plaintiff, the trial judge held that a reasonable person working in a close, professional work environment would have undoubtedly interpreted the words used as a statement of termination. In addition, the fact that the defendant had failed to rectify or clarify the situation after it had occurred was further evidence that the defendant had terminated the plaintiff’s employment.

In the alternative, the trial judge determined that the situation could be viewed as a constructive dismissal by way of which damages were payable in any event. The trial judge wrote that in the context of the particular work environment in which the parties operated, the defendant’s outburst effectively destroyed the working relationship and made a return to employment by the plaintiff intolerable, noting:

[The defendant’s] conduct had the effect of diminishing [the plaintiff’s] stature and dignity in the office. When he saw the impact it had on her, he did nothing.  In the context of the particular work environment in which they operated, that treatment made future performance of her work impossible and her continued employment intolerable.  The employment relationship was effectively destroyed in that meeting.  [The plaintiff] was quite entitled to treat the employment relationship as constructively terminated.

The Ontario Court of Appeal upheld the trial judge’s decision in favour of the plaintiff, finding she was entitled to 24 months’ notice of termination, equivalent to $120,000.

Lessons for Employers

• Sweeting is a good reminder that words suggesting the employer no longer wants to continue employing an employee may constitute either express or constructive dismissal. This is so even if the employee is not told that he or she is being dismissed or the employer does not have an intention to terminate the employment relationship.
• Employers should be aware that a single incident of bad behaviour can lead to a finding of constructive dismissal, especially in a circumstance similar to that in Sweeting where a longstanding relationship was irrevocably damaged by the defendant’s words.
• Employers should be careful to avoid situations of workplace conflict where emotions run high. Where a discussion goes sideways, the employer should act quickly to remedy the situation and correct any misunderstanding about the employee’s status.