Constructive dismissal occurs when an employer changes the conditions of employment so drastically or creates a work environment so hostile, that an employee feels they have no choice but to leave. The law allows an employee to assert abusive conduct from the employer as sufficient to establish an action for constructive dismissal. The serious nature of ongoing and regular abuse means that, should it be demonstrated, there would likely be no question that a court would find constructive dismissal.
What about a situation in which there has been a long-term employment relationship and one incident of verbal abuse has occurred?
The employee worked as a registered practical nurse for a physician, a plastic surgeon in Peterborough, for over 22 years. She was 52 years of age and worked as the office manager and as the doctor’s practice assistant.
The plaintiff’s duties included assisting in surgery, administrative duties, patient care and other administrative duties.
A secretary was also employed at the office. She ceased work, which resulted in the doctor’s wife working in the office, initially one day and then two days a week.
Due to various work issues of conflict, the employer physician made two statements to the plaintiff nurse, which precipitated the litigation. These were:
- “I’m the one that pays your f***ing paycheques”; and
- “Go! Get Out! I am sick of coming into this office every day and looking at your ugly face.”
The judge found that these words in the second passage above were words of termination of employment and alternatively, if not words of direct termination, were sufficient to constitute conduct which had brought about a termination in law, as constructive termination.
A notice period of 24 months was awarded to the plaintiff as compensation. As the employee had earned alternative income in the interim since the dismissal, the award was reduced by this new income to $70,000. The plaintiff’s arguments for aggravated and punitive damages failed. Under the circumstances, an award for aggravated damages would have been possible. To this extent, the doctor was fortunate as aggravated damages awards have been quite severe recently, in the upper range of hundreds of thousands of dollars.
Given that this was in substance a singular heated argument, the employer might well have reduced, or eliminated, his liability by issuing an immediate apology and a request for the employee to return to work. This would, at the very least, have given the employer a good position to negotiate a compromised position. As it was, the case became an all or nothing one. These cases of emotional outbursts, from the point of either party, need a cooler head to guide the strategy and indeed to salvage the relationship. The decision was by no means conclusive. It may well have gone the other way.
Wrongful and constructive dismissal litigation is high-stakes poker. The outcome of this case was not predictable. Employees in similar circumstances will benefit from a clinical view of an impartial lawyer. Costs in the event of failure are expensive. Legal advice means more than straight legal advice.
Get Advice Before You Act
For advice on this and similar issues and, indeed, any employment issue, contact the offices of Toronto employment and labour lawyers Mallins Law. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 647-792-0310 to schedule a consultation.