THE EMPLOYERS' EDGE
Can a complaint of racism arising from one employee’s failure to attend a single training session give rise to a poisoned work environment and constructive dismissal? The Ontario Court of Appeal says No
Yohann Johnson, an eight-year employee of General Motors of Canada Limited (“GM”) was a production supervisor in the body shop of GM’s Oshawa assembly plant and a black man. In 2005 Mr. Johnson was scheduled to provide training to a group leader in the body shop, Alex Markov. Mr. Markov failed to attend the training session. It was later discovered that Mr. Markov refused to attend the training session because several years earlier Mr. Johnson laughed at a remark made by another employee about Mr. Markov’s brother, who had been murdered. However, Mr. Markov agreed to attend the training session with another supervisor, who was also black.
A day later Mr. Johnson was scheduled to train another employee. The employee attended the training session, but remarked that had he wanted to forego the training session, all he had to do was claim that he was “prejudiced like the last guy whose brother was killed by a black man”. Mr. Johnson made some inquiries after this comment was made and heard from others that Mr. Markov’s brother was killed by a black man.
Based solely on this employee’s statement and on the new information he found, Mr. Johnson concluded that Mr. Markov refused to attend the training session with him because Mr. Johnson was black. He filed a complaint with the plant area manager, and three separate workplace investigations ensued. Each one of the investigations concluded that there was no evidence of racially-motivated conduct by Mr. Markov. Nonetheless, to resolve the complaint, Mr. Markov resigned his position and assumed another position in the plant.
Mr. Johnson took a medical leave of absence in 2005, claiming disability due to discriminatory treatment in the workplace because of his race. Over the next two years he failed to provide medical evidence to support his continued leave. In 2007 GM’s plant physician concluded that Mr. Johnson was fit to return to work, but Mr. Johnson stated that he was not able to work in an environment where he might come into contact with Mr. Markov. To assist him in returning to work, GM offered Mr. Johnson work in two different GM facilities located one kilometer away from the plant where Mr. Markov worked. Mr. Johnson declined these offers, maintaining that he was disabled but providing no medical evidence in support. GM advised Mr. Johnson that his failure to return to work constituted a resignation.
Mr. Johnson sued GM for wrongful dismissal. After hearing the evidence, the trial judge concluded that Mr. Markov’s refusal to attend the training session was solely racially-based and discriminatory, that GM’s conduct created a poisoned work environment for Mr. Johnson and that GM failed to take Mr. Johnson’s complaint seriously by conducting a reasonably comprehensive investigation. The trial judge further found that GM’s position that Mr. Johnson resigned was an attempt to bully him into accepting an employment position which would only resurrect the environment Mr. Johnson experienced before his leave, and amounted to constructive dismissal. The trial judge awarded damages of $95,000 for wrongful dismissal, $40,000 in special damages and $25,000 in ‘bad faith’ damages, plus costs and interest.
GM appealed the trial judge’s decision. In a decision released last week, the Ontario Court of Appeal found that the trial judge’s finding of racially-motivated conduct by Mr. Markov lies at the core of his decision, but that this finding was unreasonable and not supported by the evidence.
For various reasons, including Mr. Markov’s death before the trial, the only evidence that Mr. Markov’s refusal to attend the training session was racially motivated was based on the results of GM’s internal investigations, which concluded that there was no racial motivation, as well as Mr. Markov’s denials. The trial judge could not reasonably conclude that Mr. Markov’s refusal was racially motivated.
The Court further set aside the trial judge’s findings of a poisoned work environment leading to constructive dismissal. To conclude that the workplace was poisoned so as to lead to constructive dismissal, Mr. Johnson would have had to establish serious wrongful behaviour sufficient to create a hostile or intolerable work environment that is persistent or repeated. One refusal made by one employee over the course of eight years of employment cannot lead to a finding of a poisoned work environment and constructive dismissal, even if the refusal was racially-motivated.
Finally, the Court concluded that the trial judge’s criticism of GM’s attempts to return Mr. Johnson back to work were unfounded. Mr. Johnson did not have the right to dictate where he would work upon his return to work, and GM was not obligated to immunize Mr. Johnson from any future contact with Mr. Markov. Nonetheless, GM offered Mr. Johnson to return to work in two alternate locations. He refused. It was not unreasonable for GM to treat Mr. Johnson’s refusal to return to work as a voluntary resignation.
To establish a claim for constructive dismissal, an employee must prove that the employer’s conduct constituted a repudiation of the contract of employment, such that the employer no longer intends to be bound by the contract. Where it is alleged that an employee has been constructively dismissed by reason of a poisoned work environment due to racism, the employee must also establish that the employer’s persistent conduct has rendered his continued employment intolerable. The evidence in this case did not support that conclusion. The Court set aside the trial judge’s findings and dismissed the wrongful dismissal claim.
The Court of Appeal’s decision is an important one for employers. It reiterates that the plaintiff bears the onus of establishing a claim of a poisoned work environment on an objective standard. A plaintiff’s beliefs that he or she has been subjected to a poisoned workplace, even if genuinely held, will not be sufficient to lead to such a finding. The decision also confirms that a single incident will not amount to a hostile work environment – the conduct must be serious, persistent and condoned by the employer.
The lawyers at CCP have extensive experience in constructive dismissal claims. Please contact a member of our team with any questions you may have.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.