Constructive Dismissal or Workplace Injury?

Constructive Dismissal or Workplace Injury?

December 7, 2020

By Brian Babcock

A claim for constructive dismissal may be subject to the jurisdiction of the Workplace Safety and Insurance Board for worker’s compensation. If so, a law suit or human rights complaint may not be allowed.

In 2018, the scope of injuries recognized under worker’s compensation in Ontario was expanded to include a wider range of mental distress claims. Historically, in the absence of physical injury, it was difficult to claim compensation. The amendment to the Workplace Safety and Insurance Act (WSIA) was retroactive to 2014.

Ms. Morningstar launched both a law suit and a claim to the Ontario Human Rights Tribunal, alleging workplace harassment had forced her to quit her job. Her coworkers had complained that she smelled. As a cancer survivor, she was upset, worried that any odour might be due to a recurrence of her disease. Although this was not the case, and a change in medication eliminated her body odour problem, the employees continued to complain. The worker felt shocked and humiliated by the questioning that followed from her manger. The allegedly harassing conduct continued for another 15 months. Her complaints about the harassment were ignored by management. She took medical leave due to the stress. Finally, she quit.

She claimed that her doctors supported her decision to quit based upon her fragile mental state.

It is well established law that a worker cannot sue their employer (or coworkers) for a workplace injury covered by worker’s compensation. But until this case, few if any cases involved a claim for mental stress.

An employer which is sued may bring a parallel application to the Workplace Safety and Appeal Tribunal to determine whether the injury is compensable, and whether the right to sue exists.

In this case, the worker argued that the claim for constructive dismissal, though based on her mental state, was not a claim for compensation for a workplace injury. As noted by the Tribunal, generally claims for wrongful dismissal are not found to be prevented from proceeding under the WSIA. She also argued that there was no ‘accident’ thus the WSIA did not apply.

The Tribunal found in favour of the employer. It found that constructive dismissal is different from wrongful dismissal, and in this case, the underlying facts alleged as the cause for quitting were “inextricably linked” to injuries for which compensation might be payable. The difference in available remedies made no difference.

The definition of ‘accident’ under the WSIA is broad enough to cover the series of alleged wrongful acts by the worker’s coworkers. With the expanded definition of injuries to include chronic mental stress, a series of indents creating that stress fit the definition.

The court action was barred from proceeding. As the worker was claiming substantial amounts for tort damages and punitive damages on top of her pay in lieu of notice, the difference between the amounts payable under the WSIA and the law suit may be substantial.

About a month prior to the Tribunal decision, another decision maker, the Human Rights Tribunal, had dismissed the worker’s claim for harassment under the Ontario Hunan Rights Code on the basis of the parallel court action duplicating the claim. The HRT did not have to address the WSIA issue, which in any event is not in their jurisdiction. The Workplace Safety and Insurance Appeals Tribunal did not address the Human Rights Code issue, as that claim was dismissed already.

So Ms. Morningstar was left with a remedy under the WSIA which, as noted above, is potentially much less costly to the employer, and less lucrative to the worker.

Employers faced with claims of harassment and bullying in the workplace has a positive duty to address the issue. Failure to do so may leave them liable to a variety of claims. However, if the facts fit the template of the Morningstar case, they may avoid a constructive dismissal claim.