FAQ's Cases - Stewart McKelvey

- 3 -critical of the unsatisfactory work of its employees and, in general, to takesuch measures – disciplinary or otherwise – as it believes appropriate toremedy the situation. There is, however, a limit. If the employer’s conductin the particular circumstances passes so far beyond the bounds ofreasonableness that the employee reasonably finds continued employmentto be intolerable, there will, in my view, be constructive dismissal whetheror not the employee purports to resign.[8] In Stamos v. Annuity Research and Marketing Service Ltd. [2002] O.J. No. 1865,Dambrot J. of the Ontario Superior Court of Justice commented at para. 60:[9] An employer owes a duty to its employees to treat them fairly, with civility, decency,respect and dignity. An employer who subject employees to treatment that renders competentperformance of their work impossible or continued employment intolerable exposes itself to anaction for constructive dismissal. Where the employer’s treatment of its employees is ofsufficient severity and effect, it will be characterized as an unjustified repudiation of theemployment contract. Whether such treatment is viewed as a breach of a specified fundamentalimplied term of the employment relationship (see, for example, Lloyd v. Imperial Parking Ltd.,[1996] A.J. No. 1087 (Q.B.), and Sheppard v. Sobeys Inc., [1997] N.J. No. 78 (C.A.)), or as arepudiation of the entire employment relationship (see Shah v. Xerox Canada Ltd., [2000] O.J.No. 849 (C.A.)) the result is the same. The employee is entitled to treat the employment contractas at an end and to recover at least damages in lieu of reasonable notice.2011 ONSC 2148 (CanLII)[10] Also, at paragraph 62, he said:Not only is an employer obliged not to treat an employee in a manner thatrenders competent work performance impossible, or continued employmentintolerable. An employer has a broader responsibility to ensure that thework environment does not otherwise become so hostile, embarrassing orforbidding as to have the same effect. As Chadwick J. put it in Robinson v.Royal Canadian Mint, [1992] O.J. No. 2270 (Gen. Div.), aff’d [1997] O.J.No. 1966 (C.A.), an employer owes a duty “to see that the work atmosphereis conducive to the well-being of its employees”. An employer’s failure toprevent the harassment of an employee by co-employees is an obviousbreach of this duty, and has been held to be capable of amounting toconstructive dismissal (See Sheppard v. Sobeys Inc., at para. 25).[11] EVIDENCE[12] Leyda (Bonnie) Wills gave evidence for the plaintiff. She worked for the defendant forone and one half years in or around 2001 and 2002, and had been a travel consultant for 25 years