Honk if you’re hostile: Labour ruling outlaws ‘poor treatment’

TORONTO, (Dec. 5, 2003) — If you’re the type of manager who punctuates reprimands or instructions with words you won’t find in the dictionary, you should think about changing your ways, or you might find yourself in front of a judge.

The Ontario Superior Court of Justice recently decided that “poor treatment” of an employee was grounds for constructive dismissal and awarded a worker 12 months pay in lieu of notice as well as three more months of remuneration — all because the guy took offence to the way his employer expressed disagreement.

The case, Saunders v. Chateau Des Charmes Ltd., follows an earlier case in which the Ontario Court of Appeal ruled that constructive dismissal does not necessarily require a breach in the employment contract, but can also be found in cases where the employer has “repudiated the relationship through an atmosphere of hostility, embarrassment, and humiliation,” which leads an employee to resign and seek damages, writes Brampton, Ont.-based labour attorney Christopher Andree in his firm’s newsletter.

The court in the Saunders case called the following behaviour unacceptable: hostile, aggressive, profane, or rude conduct directed toward an employee; a management style occasionally punctuated with anger and profanities; and discipline carried out in a manner which is demeaning.

Andree says the ruling also means that a worker’s poor performance may be exempt from discipline if the negative effect of the manager’s disciplinary style makes it difficult for the employee to concentrate on his work, thereby creating stress. The offended employee also has no obligation to tell the supervisor that his conduct was offensive. Rather, the court placed the onus on the employer to identify such problems in the workplace.

So who’s to say what’s “appropriate” behaviour or discipline? It’s subjective, Andree explains, based on the interpretation of the offence by the plaintiff. “You have human beings on the bench, not machines,” Andree told Today’s Trucking. “One interpretation of progressive discipline can just as easily be another’s interpretation of harassment.”

While placing the onus on the employer is acceptable for severe conduct, Andree says in less obvious cases the approach will make it extremely difficult for managers to follow the principles of progressive discipline. This in turn will hamper their ability to identify which employees react to different styles of motivation. “This case says progressive discipline itself can create a situation where the employee is incapable of improving his performance,” Andree says. “If you can’t tell the employee he’s doing anything wrong for fear of shaking his confidence, then you’re left with a situation where it’s a disservice to both the employer and employee. The danger is that, instead of using discipline, an employer may just terminate at the first instance.”

Andree says at the end of the day he’s confident judges will use the test criteria objectively to determine if conduct by the employer falls within the type of the mistreatment identified in this case. “However,” he says, “we as a society are moving in a direction where the feelings of individuals are given more and more weight in determining what is objectively acceptable.”