Since most of us spend the majority of our day at work, our work environment is a very important place. A pleasant, friendly and supportive work environment is essential to our well being and encourages us to do our best work. Unfortunately, some work environments are rife with tension and prejudice. I am often asked by employees whether there is something that can be done to force their employer to deal with a poor work environment.
Traditionally, employees believed that there is little that can be done about a work environment contaminated with prejudice. It was believed that while the employer has responsibility for maintaining and encouraging a proper work environment, there was not much that employees could do if they found themselves working in an environment filled with prejudice and discrimination. The only remedy often considered was a human rights complaint where the employee was discriminated against based on a prohibited ground such as their religious beliefs.
Today, the law has evolved considerably so that an employer who fails to maintain a proper work environment may be deemed to have constructively dismissed an employee. A constructive dismissal occurs when the employer unilaterally changes a fundamental term of an employee’s employment arrangement. The most common example is where the employer demotes or reduces an employee’s pay. Such a change, unless specifically contemplated by contract of employment, amounts to a constructive dismissal. This, effectively, means that the employee was dismissed from their job and, if they so choose, may leave their work and demand a termination package.
The courts have now confirmed that it is an implied term of every employees’ employment agreement that the employee be treated with respect and that the employer will maintain a work environment free of harassment, prejudice and discrimination. If the employer fails to meet these obligation, the employer may be deemed to have breached a term of the employment agreement, thereby constructively dismissing the employee.
Take the following example: A Jewish employee works in a factory where employees often make light of his religious beliefs and where the employee is subjected to name calling and degrading behaviour by co-workers. In this case, it is not the employer who directly caused the work environment to become poisoned. The employer, however, has an obligation to ensure that such behaviour does not happen in the workplace and that measures are taken as against those individuals who are engaged in inappropriate behaviour. Failure by the employer to take such steps, if the employer is made aware of the situation, may well amount to a constructive dismissal.
For an employee, it is important to advise an employer of any instances where the employee feels harassed or mistreated in the workplace. This will impose an obligation on the employer to take immediate action, or be deemed to have constructively dismissed the employee, thereby becoming liable for a potentially hefty termination package. As an employer, it is imperative to have in place clearly communicated policies dealing workplace behaviour and treatment of employees and to actively monitor the workplace to ensure that these policies are being complied with.
In addition to a constructive dismissal, a poor work environment exposes an employer to other liability. Courts today have shown an increasing willingness to compensate employees for mental distress suffered as a result of poisoned work environments. The courts have realized that all employees have the right to be treated with dignity and have their beliefs respected in the workplace and that, where this does not happen, employees are likely to suffer considerably. Gone are the days where the work environment was solely the employee’s problem, as today, employers must take note of these changes in the law.