Dissatisfaction at work 'not all that's needed to reach threshold of constructive dismissal'
The Nova Scotia Labour Board has dismissed a worker’s constructive dismissal claim, finding that the workplace was not objectively toxic and the worker’s negative perceptions affected her view of it.
“The fact that you may be dissatisfied with your workplace or you may be unhappy with certain things is not all that's needed to reach the threshold of constructive dismissal,” says Geoff Breen, chair of the Employment and Labour Group at Cox & Palmer in Halifax. “There needs to be such fundamental action that the employer is effectively evincing an intention not to be bound by the employment contract – [the worker’s] subjective interpretation of events is not going to override that.”
The worker was employed with Cornerstone Cape Breton Association, a nonprofit charity organization based in Sydney, NS, providing domestic violence education and treatment.
In March 2018, an aggressive client named TJ arrived at Cornerstone without an appointment. The worker agreed to meet with him, but TJ started eating food with a knife. A co-worker gave him a fork and then left the worker alone with him. TJ soon became aggressive and disrespectful, using inappropriate language.
Upset, the worker texted her manager about the incident. A case management conference addressed the incident and how to manage the process in the future. Afterwards, the worker indicated that she was satisfied with the outcome.
However, the worker was displeased with the board of directors, as she felt they chastised her for meeting with TJ alone contrary to Cornerstone policies. Her manager also said that she had told the worker many times to never meet a client alone but she didn’t tell the worker if the colleague who had left her alone with TJ was being held accountable.
Cornerstone implemented security measures in response to the incident, including security cameras at the entrance, new panic buttons to improve response time, and counselling for the worker.
The worker felt that her manager treated her poorly after that, dismissing other suggestions and improperly suggesting that she needed professional counselling. She also felt that the manager slighted her by telling the board of directors that she did “good work” when a co-worker was described as doing “excellent” work.
Cornerstone also installed a camera outside the office with a monitor that allowed employees to see clients before they came in, but the worker took exception because she wasn’t told about it in advance.
The worker felt that a pattern of poor treatment was developing, based on the incident with TJ and a few other incidents. On one occasion, she gave her manager credit cards when she went on vacation, but when she returned, the cards were gone. After searching for them, the cards reappeared on her desk. The manager denied hiding the cards.
Other incidents included filing cabinets in the offices locked with the keys in the safe when the manager and her co-worker were on vacation, and closed office doors that the worker believed excluded her from conversations and blocked her from air conditioning. However, the manager said that all employees had access to the safe and she would have rectified the situation had the worker contacted her and the doors were closed to create a cooler environment for a group meeting. The manager also ordered a personal air conditioner for the worker.
On July 23, an agitated woman came into the office and started asking questions about Cornerstone. The woman was the mother of the worker’s colleague, who the worker believed was known to police and might know that her husband was a police officer. When the worker asked her manager about the woman the next day, the manager said “not everything is about you” – the woman was in fact there for a private matter regarding another employee.
A worker who declared that he quit and wrote a letter of resignation didn’t show an objective intention to resign, according to a BC arbitrator.
On Sept. 10, the worker took a one-week sick leave. While off work, she emailed the chair of the board of directors saying that she was going to submit a letter of resignation. She felt that she wasn’t being recognized any longer and she was being treated in a passive-aggressive manner.
The next day, the worker tried to access her work email from home but found it blocked. The manager had changed the password as part of a global password change, and the worker had not responded to a request for her login information.
Two days later, the building manager told the worker that the locks to Cornerstone’s office had been changed under the manager’s instructions. It had been discovered that the key to the communal bathroom could open all of the doors in Cornerstone’s office, so new keys were made, including for the worker.
Following her sick leave, the worker took vacation leave until Oct. 19. She emailed the chair of the board again to say that she had her letter of resignation and was taking vacation she had accrued. She also asked for a date to pick up her belongings from the office, which the chair confirmed.
On Sept. 18, the worker started an eight-month contract position with another employer.
Giving a worker a guilt trip that steered her into quitting and refusing to let her change her mind was wrongful dismissal, a Saskatchewan arbitrator ruled.
The worker filed a complaint claiming that she was constructively dismissed by Cornerstone as a result of the conduct of her manager and co-worker that created a toxic work environment.
The Nova Scotia Labour Standards Director denied the worker’s complaint and the worker appealed to the Nova Scotia Labour Board.
The board noted that the worker emailed twice to say that she was resigning and asked to set a date to remove her belongings. She never sent the letter, but she never returned to work for Cornerstone and started a new job. These elements clearly indicated that the worker intended to quit and a reasonable person would interpret them as such, said the board.
An employment lawyer discusses how an organization can change the way it operates without triggering a constructive dismissal
The determination that the worker resigned came down to objective criteria and the fact that wasn’t a quick decision, says Breen.
“What's most important is that not only had she indicated [resignation] in a spur-of-the-moment-type situation in an email but [the worker] reiterated her intent to resign,” he says. “So that gave the employer a very credible position to say, ‘We took that as a serious resignation and she maintained the position for quite some time so we could rely upon it.’
“It's interesting because there wasn't a clear resignation letter actually delivered, but it wasn't a situation where the employee came back a day later and said they changed their mind or didn't really mean it – it was a pretty drawn-out process,” adds Breen.
Although the worker resigned, it could be constructive dismissal if the employer’s conduct indicated an intention to repudiate the employment relationship, said the board. However, the board did not find such conduct.
A worker acted too soon when he claimed constructive dismissal right after temporary changes to his job duties and location, the BC Supreme Court found.
The board found that the TJ incident was handled in a respectful way and there was no evidence the measures taken afterwards were for anything but security. None of the other incidents – the credit cards, air conditioning, closed doors, missing keys, or changed locks – were part of bad-faith conduct that created a toxic work environment, the board said. There were reasonable explanations for most of the circumstances that showed no bad intentions on the part of the manager, co-workers, or Cornerstone, said the board.
The board also noted that when the email password had been changed, the worker had been given a chance to respond but didn’t, and at that point it was reasonable for Cornerstone to assume that she wasn’t returning.
The board noted that all the incidents and disagreements were “clouded by a perception of bad intentions” by the worker. However, a reasonable, objective person would not consider the worker’s continued employment at Cornerstone intolerable, said the board in dismissing the complaint.
The worker had various theories on Cornerstone’s intentions, but Cornerstone had a reasonable, good-faith explanation for what they’d done and that was good enough to disprove the worker’s claims, says Breen.
Despite the worker’s subjective perceptions, the case highlights the difference between dealing in good faith and active communication with employees and leaving them in the dark with unaddressed concerns, says Breen.
“Make an effort to respond to employee concerns in good faith,” he says. “That may seem like it's easy, but when you're busy and in the midst of work, sometimes you can unintentionally be dismissive of things.”
See Murray-Farrell v. Cornerstone Cape Breton Association- Strategies for Building Healthier Relationships, 2022 NSLB 89.
