At its very best a workplace can be an organizational marvel, where everyone's talents are coaxed and channelled in a respectful environment, all heaving towards a common goal. At its worst, however, a workplace can be destructive, toxic, a source of anxiety for employees… and of liability for employers.
How can an employer properly address a poisoned workplace complaint to ensure that it adequately cares for its employees and minimizes its liability exposure? This is the issue that was addressed by the Alberta Court of Queen's Bench in TLK v Serva Group Ltd (PDF).
The claimant, Ms. K, was employed by Serva Group Ltd. ("Serva") as an expediter and buyer.
She shared an office with Mr. C, who coordinated aftermarket sales. On August 8, 2013, Ms. K agreed to help Mr. C handle after-hour sales since he was taking a holiday on the following day. Ms. K was given Mr. C's work phone for this purpose.
However when she used Mr. C's phone, Ms. K discovered a series of emails about herself that were being exchanged amongst her co-workers. In one email she was criticized for an error she had made. In another, Mr. C "chuckled" about the criticism, and expressed a question as to whether she "gets it". She was also called a "crazy lady" and "a failure" in another email.
Ms. K was very upset and complained to her supervisor. The supervisor met with Mr. C, ultimately leading him to apologize to Ms. K. When Ms. K protested that the apology was insincere, her supervisor offered a 3-way meeting to resolve the dispute. This was declined by Ms. K.
Ms. K did not return to work. Her doctor issued a note saying that she needed to be off work. Ms. K also started seeing a psychologist. In an effort to address her concerns, the employer's Director of Human Resources wrote an email to Ms. K:
Our desire is that employees treat each other with dignity and respect, and work together as a team. If you experience any issues in the future, you may report them to your manager or to any higher member of management. You may also contact me at any time – my contact information is listed below. [emphasis added]
This reassurance was not enough. Ms. K reiterated that she would not return to work. When the employer asked Ms. K for a further medical certificate supporting her absence, Ms. K again confirmed that she would not return. She never did.
Ms. K then commenced a constructive dismissal claim alleging a poisoned work environment.
Poisoned Environment & the Employer's Response
Whether a poisoned environment justifies a claim for constructive dismissal depends on the facts. The fundamental question is whether the employer fundamentally breached its obligation to provide a safe and harassment-free workplace.
The legal test requires that "serious wrongful behaviour" be demonstrated on an objective basis. An employee's subjective feelings or even genuinely-held beliefs are insufficient. Generally, except for particularly egregious stand-alone incidents, a poisoned workplace is not created as a matter of law unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.
The Court ultimately held that the environment was not poisoned and that the employer had acted appropriately:
- This was not a case of repeated insulting behaviour, nor was such behaviour tolerated or condoned by management;
- The employer treated the complaint seriously. The supervisor considered the insults to be a significant issue. He expected, and arranged for, an apology. When the apology was not considered sincere, he proposed a 3-way meeting which was declined;
- The employer did not take issue with Ms. K's use of Mr. C's phone nor did it question her medical leave; and
- The employer's Director of Human Resources also arranged for follow-up discussions after Ms. K returned to work, and encouraged Ms. K to contact her if the concerns persisted.
Lessons for employers
This case not only offers a useful summary of the law on poisoned workplaces, but it also offers several practical suggestions to employers on how to address these types of complaints:
- Treat complaints seriously. The employer was repeatedly commended by the Court for its handling of this case. While it could have accused Ms. K of "snooping" on Mr. C's phone, it did not do so. Instead the employer focussed on the complaint and addressed it with all seriousness.
- Reaffirm respect in the workplace. Immediately after the complaint was made, the employer arranged for an apology from Mr. C and reaffirmed its stance on workplace respect. This fact was specifically cited by the Court as a reason why it dismissed Ms. K's claim; and
- Offer continued support to employees. An offer of ongoing support (like the one provided by the employer's Director of Human Resources) signals to Courts that an employer takes its responsibilities to its employees seriously and, correspondingly, can lessen the risks of a constructive dismissal claim.