What's reasonable when it comes to bullying in the workplace?
Sandra started working for an engineering consulting company in January of 2007. In the small branch office there was just her, as a sales assistant, and two sales representatives. By November of that year she walked out the door, never to return, and claimed she had been constructively dismissed as a result of being sexually harassed and bullied.
Where somebody is complaining of conduct by their manager that forced them to leave their employment, the test is whether that behaviour was so bizarre that a reasonable person in those circumstances should not be expected to stay. While an employer is entitled to be critical of unsatisfactory work and take disciplinary measures, there is a limit. If the employer’s behaviour passes so far beyond the bounds of reasonableness that the employee finds staying to be intolerable, there will be a constructive dismissal and the employee will be entitled to damages.
Sandra alleged that one of the two sales reps was constantly engaging her in sexual discussions that made her uncomfortable. She said he asked her about sexual positions she had engaged in and details of her sex life. He speculated about what attracted her sexually and talked constantly about the sexual exploits of a friend of his. She claimed that she told him that these conversations were not welcome but it wouldn’t stop. To the extent that she admitted participating in the conversations, she said she felt bullied to do so.
The offending sales representative denied that she was uncomfortable with these conversations and gave several examples of sexual discussions Sandra initiated, including physical attributes of her ex-partners and constant reporting about her sexual activities.
It came out at trial that during the one summer she worked there she took a picture of the sales rep with her cell phone and sent it to her best friend to try to set them up on a date. Given that her evidence had been that the sales rep had basically been a pig since the day she walked in the door, the judge thought this behaviour was inconsistent. Sandra claimed she was just trying to set him up with her best friend to get him offer her back. Nice best friend.
It turned out that two months before she left she sent an email to the boss at her old job that she had left for this new position saying she missed the old company “but I am happy where I am”.
In his decision, the judge said that Sandra “was not wholly unbelievable”. He noted that she tended to digress and often didn’t answer questions put to her directly. He said she exaggerated often and would not acknowledge any weakness in her case or that her workplace behaviour was sometimes inappropriate.
The allegations of sexual harassment were rejected by the judge but that wasn’t the end of the story.
Sandra alleged that the sales rep, when frustrated with her, had called her an idiot and pathetic. He made her do an IQ test and told her she would not get past the second question. He often had incidents of angry outbursts in the office which intimidated her. In his evidence, the sales representative did not comment on these allegations or deny them. In a court of law that means they are true. Clearly, referring to an employee as an idiot and pathetic and insulting the intellectual abilities to their face is abuse that no one should have to tolerate. How bad was it? Who really knows? She said she was happy there. The judge awarded Sandra two months pay in lieu of notice minus the money she made at a new job during that two months. He also awarded her a lost bonus and $3,500.00 for the mental distress she was caused. Sandra had evidence that she had to take extra anxiety medication as a result of this treatment and sought a doctor’s care.
I am consulted on a weekly basis by employees who believe that their boss’s treatment of them is so extraordinary that they have the right to walk out the door and take the position that they have been constructively dismissed. Sandra’s case confirms what I tell them: Unless your boss is yelling at you on a regular basis and calling you names, there is a limited chance of success.
Often the employee will be the subject of a performance review or disciplinary process which they feel is completely unfounded and malicious. The problem is that the performance issues are almost always subjective. How do you prove that your boss criticized you for a lack of team work just because she wanted to pick on you rather than because that’s what she honestly believed? It may be that the boss is really trying to squeeze you until you quit in frustration but proving it in a court of law is a big challenge.
As published in the Hamilton Spectator, May 31, 2010