Toxic (or “Poisoned”) Work Environments
If you are working in an environment where you believe you are the victim of bullying, discrimination, or harassment, you may be working in a toxic or “poisoned” work environment. These environments are illegal. A work environment that is toxic may violate the Ontario Human Rights Code (“OHRC”) and the Occupational Health and Safety Act (“OHSA”). If the toxic environment is not addressed by the employer, this could amount to a constructive dismissal. In every employment relationship, there is a fundamental implied term that the employer will treat the employee with civility, decency, respect and dignity. Further, the employer has a common law duty to provide a safe system of work. As such, they also have a duty to prevent abuse and inappropriate conduct by co-workers.
The employee, as the claimant, bears the burden of proof. The test to establish a toxic or “poisoned” work environment is an objective one. This means that the employee’s subjective feelings or genuine belief will not be enough. Instead, there must be evidence that could lead a reasonable bystander to conclude that a poisoned workplace environment was created.
Under the OHSA
Under the OHSA, workplace harassment is defined as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” This includes sexual harassment. Captured by this definition are unwelcome comments that are offensive, embarrassing, humiliating and demeaning as well as intimidating or discriminatory.
The OHSA requires employers to conduct investigations into incidents and complaints of workplace harassment and to subsequently inform the complainant and alleged harasser of the results of such an investigation.
Note, however, that it is far more common for an employee to seek remedies under either the OHRC or through constructive dismissal, as discussed below. This is because employees do not recover damages where an employer is found to have violated the OHSA.
Under the OHRC
Under s. 5 (1) of the OHRC, all employees have a right to equal treatment without discrimination based on the following grounds: “race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.” These are known as prohibited grounds. There must be no harassment or discrimination in the workplace relating to any of these grounds.
An employee who is experiencing harassment or discrimination contrary to the OHRC may be working in a toxic or “poisoned” environment.
Potential Constructive Dismissal
An employee may be constructively dismissed if their employer, by their own conduct or by their failure to prevent the conduct of others, has treated the employee so poorly that it is impossible to continue the employment relationship. In such a case, the employer has by its conduct demonstrated its intention to no longer be bound by the employment contract.
Usually, a constructive dismissal will not follow a single, standalone incident. It could, if the incident is particularly egregious. However, generally speaking, a constructive dismissal will require serious wrongful behavior that is persistent or repeated.
If you have indeed been constructively dismissed from your employment, then you can sue for constructive dismissal. The exact amount of compensation you can recover may vary depending on a number of factors, including your age, length of service, and availability of similar employment, among other considerations.