Poisoned workplaces and constructive dismissal: Objective evidence ousts personal perceptions of discrimination 


September 2013

Employment and Labour Bulletin
Stefanie Di Francesco, student at law

In General Motors of Canada Limited v Johnson, 2013 ONCA 502, the Ontario Court of Appeal overturned an earlier decision which held that a worker was constructively dismissed based on allegations that the workplace was poisoned by racism.

the facts

The plaintiff, Yohann Johnson, claimed that the reason another employee, Alex Markov, refused to attend a training session led by Johnson was because Markov was racist. Markov claimed that he refused to train with Johnson because of his personal dislike of Johnson, resulting from insensitive comments Johnson allegedly made about the death of Markov's brother.

GM investigated Johnson's complaints on three separate occasions and took remedial action. Dissatisfied with GM's response, Johnson took a two-year approved medical leave of absence to recover from a disability that arose from the alleged discrimination he experienced in the workplace.

Once Johnson was cleared to work, GM offered him two different positions, both within one kilometer of his prior place of employment. GM also offered to adjust Johnson's shifts and supervision. Johnson declined the offers, asserting that he was disabled from working at any GM plant where he may come into contact with his former colleagues. Receiving no medical evidence to support this claim, GM concluded that Johnson had resigned. Johnson claimed he had been constructively dismissed as a result of a workplace poisoned by racism.

not constructive dismissal

Despite finding that Johnson, "genuinely believed that he was a victim of racism in his workplace" and his "perception of events unfortunately led to stress and mental anguish", the Court overturned the trial decision, finding insufficient objective evidence to sustain Johnson's claim.

The Court emphasized the seriousness of an allegation of racism in the workplace and confirmed the far-reaching reputational and employment implications a finding of a poisonous workplace has for the claimant, alleged perpetrators, and employer. The Court held as follows:

Judicial consideration of an allegation of constructive dismissal based on alleged racism in the workplace requires careful scrutiny of and balanced attention to all the evidence relating to the allegation in order to determine whether it is more likely than not that the alleged racism occurred.

the findings

The Court made the following findings with respect to the allegedly poisoned workplaces:

  1. Onus: The plaintiff bears the onus of establishing a claim of a poisoned workplace on a balance of probabilities.

  2. Discharging Onus: The plaintiff's subjective feelings and genuinely held perceptions of discrimination in the workplace are insufficient to discharge the onus. The onus is discharged only when there is evidence that, to the objective reasonable bystander, would support the conclusion that the workplace was poisoned by discriminatory conduct.

  3. Required Misconduct: Except for egregious stand-alone incidents, a poisoned workplace is not created unless serious wrongful behaviour is persistent or repeated.

With respect to the law of constructive dismissal caused by a poisoned workplace, the Court held as follows:

  1. Standard of Proof: An employee must prove that the employer's conduct not only constituted a repudiation of the employment contract but that the employer's persistent discriminatory conduct rendered continued employment intolerable.

  2. Accommodation Requirements: An employer is not required to ensure that there is no possibility of future contact between the complainant employee and the discriminator employee.

take away points for employers

The Court was satisfied that GM had taken Johnson's complaints seriously; conducted several thorough investigations; made clear to employees that they did not approve or condone discriminatory conduct; and presented fair and reasonable employment accommodation options to Johnson.

If faced with similar issues, employers should ensure that: (1) all complaints of discrimination in the workplace are taken seriously; (2) complaints are investigated in a timely fashion; (3) investigations of discrimination are thorough and conducted by experienced and objective personnel; and (4) fair and reasonable employment accommodation options are offered to employees who suffer from a disability as a result of a perception of discrimination. These actions project to employees and the public that the employer does not approve or condone discriminatory conduct in the workplace.

by George Waggott

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2013