January 8, 2003by Israel Foulon LLP
Question: An employee recently left us after having made various complaints about her supervisor. In particular she complained about the tone and manner in which the supervisor spoke to her and claimed the supervisor was constantly making comments to her which she found to be rude and degrading. Although she resigned from her position about a month ago, she is now seeking damages for wrongful dismissal. Does she have a legal claim against us?
Answer: Although you may not have actually dismissed the employee in question she can still start an action for damages for wrongful dismissal based on a claim of constructive dismissal. This basically means she will assert your conduct was such that it gave her the right to treat the employment contract as at an end. Based on the situation you have described, the grounds for this claim would be a form of workplace harassment which has been referred to as “supervisory bullying.”
The law states there is a fundamental implied term of an employment relationship that an employee will be treated with respect, civility, dignity and decency by her employer and fellow employees. Conduct which violates this right constitutes a breach of the employment relationship. Treatment that makes performance of her work impossible and continued employment intolerable can amount to constructive dismissal.
Therefore if the employee in question was forced to resign from her employment because of rude and degrading comments from her supervisor, it is possible a court might find she was constructively dismissed and therefore entitled to reasonable notice upon termination.
Assuming you did not make any severance payments to her upon resignation, you may be liable for damages for wrongful dismissal. Whether or not she will be successful in claiming she was constructively dismissed, and therefore entitled to damages, will depend on the specific facts of the case.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or email@example.com. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today