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Employment & Labour

Bullying-related constructive dismissal claims hard to prove

Plaintiffs who alleged they were constructively dismissed as a result of workplace bullying face an uphill battle proving their case in court, Toronto litigator Stefan Rosenbaum tells AdvocateDaily.com.

“Courts are very hesitant to find that an employee was constructively dismissed on the basis of harassment,” says Rosenbaum, an associate with Shibley Righton LLP. “Unfortunately, society expects us to put up with a certain amount of friction when we go to work.

“Not every instance of hurt feelings is going to rise to the level of harassment, and the onus is on you, as the plaintiff, to prove not only that it occurred, but that it led to your constructive dismissal,” he says.  

Rosenbaum says there are ways plaintiffs can boost their chances of success in court.

“You need to take detailed notes of the harassment that occurs and what happened afterwards. That includes when you told your boss about it and what, if any, action was taken by management as a result,” he says. “If the abuse is verbal, then there needs to be a documented pattern of it.”

If the matter comes before the courts, Rosenbaum says a judge will be looking at the allegations from the perspective of a “reasonable objective bystander,” which means plaintiffs have to consider whether another person would react in a similar way when faced with that situation.

“You need to ask yourself whether a normal person off the street would look at your case and think it has risen beyond a level that you should be expected to endure,” he explains.

“Obviously there are different levels of harassment, and if it's at the lower end of the spectrum, you will need to show it was not a one-time thing. If it’s a more serious physical or sexual harassment, then you might not have to prove it happened multiple times.”

Rosenbaum says bullying-related claims typically occur in three broad areas. Other than civil constructive dismissal cases, he says allegations can also form part of an application at the Human Rights Tribunal of Ontario if the bullying is related to a protected ground, such as race, gender or family status. Allegations may also come up in proceedings under the Occupational Health and Safety Act (OHSA).

Whatever the nature of an employee’s complaint, Rosenbaum says employers must respond by investigating.

Last year, Bill 132 amended Ontario’s OHSA by mandating employers to conduct investigations into incidents of alleged workplace harassment.

The bill also explicitly expanded the definition of workplace harassment to include sexual harassment and provides provincial inspectors with the power to order an impartial investigation at the employer's expense, reports the Globe and Mail

“No matter how meritless or frivolous you believe the complaint may be, the best practice is to conduct some sort of an investigation,” Rosenbaum says.

“If the investigation concludes that it’s more of an interpersonal issue that doesn’t rise to the level of harassment, then at a certain point, you have to draw a line and try to move on," he says. "But if it turns out there is merit, then obviously some other action will have to be taken.”

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