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A recent Ontario Workplace Safety and Insurance Appeals Tribunal decision took away an employee’s right to sue for constructive dismissal because the fundamental nature of her action was a claim for injury resulting from harassment and bullying in the workplace.

What Happened?

The employee began working for the employer in its housekeeping department in May 2015. In May 2016, she was promoted to the position of supervisor. 

The employee resigned her position with the employer in February 2018 claiming constructive dismissal as a result of harassment and bullying in the workplace. In consultation with her doctors, she claimed she was unable to return to work due to the harassment, and her fragile mental state resulting from the harassment and bullying to which she was subjected in the workplace. 

She filed a Statement of Claim in the Ontario Superior Court of Justice on April 2, 2018 claiming damages for constructive dismissal, bullying, harassment and/or a poisoned work environment pursuant to the Occupational Health and Safety Act (the “OHSA”), the tort of harassment, as well as punitive, aggravated and/or moral damages. 

In particular, the employee claimed that she “was forced to resign from her position with [the employer] due to the harassment, bullying and abuse she endured during the course of her employment and the resulting mental distress she experienced and continues to experience.” She pled further that the claim “relates to the harassment and bullying that [she] experienced as a result of a toxic work environment created by [the employer’s] employees and management and her subsequent constructive dismissal.”

The employer filed an application seeking a declaration that the employee’s right of action against it was barred by the Workplace Safety and Insurance Act (the “WSIA”).

Issue

The issue was whether the employee’s right of action was taken away pursuant to the WSIA

Parties’ Positions

The employer submitted that the employee’s Statement of Claim was effectively a claim for chronic mental stress under the WSIA and thus her right of action was removed in relation to her action for constructive dismissal, and for damages for mental stress, aggravated, moral and punitive damages, and for breach of the OHSA for bullying, harassment, the creation of a poisoned work environment and/or the tort of harassment. 

The employee submitted that a worker’s right to claim for damages in a civil action is taken away by the WSIA only in respect of the damages that are compensable under the WSIA and one must look at the three causes of action to determine whether they are inextricably linked to a work accident. 

The Decision

The tribunal explained that it was not being asked to make a determination as to whether the employee was subjected to harassment and bullying in the manner she claimed or whether she was injured as a result. It was only to determine whether the circumstances she alleged brought her claim within the scope of the WSIA and thereby removed her right to bring a civil action against the employer.

The tribunal stated that it has generally found that the right to bring an action for wrongful dismissal has not been removed by the WSIA. Rather, it is only in the exceptional case that this is not so, where the circumstances of the wrongful dismissal claim are inextricably linked to the work injury. 

In this case, the tribunal found that the exception applied. It found that the employee’s action against the employer was not for wrongful dismissal in the usual sense, but rather was for constructive dismissal, meaning her employment was effectively terminated by the harassing and bullying conduct of co-workers and management which caused her mental distress to such a degree that she was forced to take sick leave and ultimately to resign. It found that such facts were inextricably linked to a claim for injury governed by the terms of section 13(4) of the WSIA

In other words, it found that the employee’s Statement of Claim was, in essence, a claim for injury resulting from alleged workplace harassment and bullying and thus fell within the scope of section 13(4) to provide for entitlement for chronic mental stress arising out of, and in the course of, the employee’s employment. Additionally, the tribunal found that the other remedies sought by the employee were also claimed on the same facts of harassment and bullying in the workplace. 

As a result, the tribunal found the employee’s right of action was taken away by the WSIA. However, pursuant to section 31(4) of the WSIA, the employee could file a claim for benefits within six months of the decision.

Get Advice

At Campbell Bader LLP, our Mississauga employment lawyers have been representing non-unionized employees in workplace disputes since 1999. We know that such disputes can be very stressful and can get emotional quickly. We seek to simplify the law so that you understand your options and make informed decisions. We leverage our extensive experience advising employers to provide insightful guidance to employees who are facing challenging circumstances at work. We work hard to protect you.

If you have questions about unfair practices in the workplace, wrongful dismissal, or any other employment matter, contact the Mississauga employment lawyers at Campbell Bader LLP. Our knowledgeable employment lawyers can counsel you on your rights, advise you on your options, and help you create a plan for moving forward. We represent employees in Mississauga and areas west of Toronto. Contact us online or at 905-828-2247 to learn how we can help.