Deconstructing constructive dismissal

Howard Levitt, Financial Post 

Deconstructing constructive dismissal


Stock Photo / Fotolia.com


At what point can you throw your hands up, walk out and assert you've been constructively dismissed because of an environment you are no longer prepared to live with?

Most Canadians spend the bulk of their waking lives at work, navigating through spotty relationships with bosses, upper management, co-workers, even subordinates. Many have toiled in toxic environments; whether it is dealing with a boss who communicates through expletives or a gossipy, dissension-emoting co-worker.


A recent British Columbia decision dismissed a constructive dismissal claim because the employee, Barbara Danielisz, contributed to the toxic work environment she alleged amounted to her constructive dismissal.

Danielisz wrote negative, unprofessional emails about employees who reported to her. In her defence, those employees were indeed insubordinate and uncooperative. They didn't do their jobs well and certainly didn't make Danielisz's job easier. Nonetheless, she fell prey to her emotions and had heated verbal exchanges with them; at one point referring to one as a "snotty little bitch."

That further deteriorated the feuding employees' relationship and eventually caused Danielisz to assert constructive dismissal. She felt she was picked on, that her boss overruled her discipline, that the workplace was intolerable and that it was having a negative impact on her health.

While Danielisz likely was on the receiving end of insubordination by difficult and uncooperative employees, she was a significant author of her own misfortune. Ultimately the court dismissed her claim, finding she had contributed as much to the poisoned work environment as she was its victim. As Madam Justice Arnold-Bailey found, "to the extent that [her co-worker] thought she could behave badly in the workplace or exhibit an insubordinate attitude, which she definitely did at times, it was Danielisz who had set the tone for her department."

To avoid making a similar mistake, employees working in a toxic work environment should keep the following in mind:

Remain professional no matter what: If you are subjected to inappropriate or vulgar language, threats of termination or worse, do not react. Walk away. It is an unfortunate but grim reality that what employees say during heated exchanges will be used against them. Practically speaking, yelling back at your boss, regardless of what your boss said, can be construed as insubordination. Don't give your employer ammunition.

Record your mistreatment in a memo or document: If you are poorly treated, bring it to the attention of human resources or management in writing. Use neutral language. This is especially important if you are thinking of pulling the plug on your job. Documenting your treatment will support a future constructive dismissal claim.

Get a lawyer involved: Constructive dismissals are increasingly more difficult to sustain. Documenting your mistreatment and having your lawyer "ghost write" your letters before "pulling the trigger" will increase your prospects of success.

Be strategic: When it comes to constructive dismissals as the result of a toxic workplace, be the "bigger" - and smarter party. Employees must come to the table with clean hands.

