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Workplace Stress and Anxiety

In the age of the COVID-19 pandemic, many employees are experiencing yet another source of stress, anxiety and depression, which only adds on top of the usual suspects:

  • tight deadlines
  • difficult projects or assignments
  • finances
  • family caregiving obligations
  • a micromanaging boss, manager or supervisor
  • discrimination
  • workplace harassment, bullying and intimidation
  • commute to and from work

In this blog post, we discuss an employee’s recourse when the source of work-related stress and anxiety is something (or someone) in the workplace.

Occupational Health and Safety Act

The law in Ontario makes it clear that everyone should be able to work in a safe and healthy workplace. As such, Ontario’s health and safety law establishes roles and responsibilities of employers to prevent workplace violence and workplace harassment, including developing and implementing policies and programs and providing information and instruction on these.

Basically, all employers have a responsibility to protect the health and safety of all employees, customers or patrons in the workplace. This includes, among other things, taking all reasonable steps required to prevent (and respond to) workplace harassment or sexual harassment, including having an workplace harassment policy that outlines the definition of workplace harassment and provides examples of unwelcome behaviour that will not be allowed at work, such as:

    • offensive or intimidating comments or jokes
    • bullying or aggression
    • displaying or circulating offensive pictures or materials
    • inappropriate staring or leering
    • workplace sexual harassment (e.g., unwelcome solicitation or advances from a manager, supervisor or another person in a position of power who has the power to reward or punish the worker)
    • isolating or making fun of a worker

 In addition to having and enforcing a workplace harassment policy, employers are required to:

  • have a clear process in place to allow employees to file a formal complaint with out fear of reprisal (retaliation)
  • quickly and thoroughly conduct an appropriate investigation to get to the bottom of any complaint of workplace harassment (e.g., interviewing witnesses, perpetrator and victim)
  • take steps to fully remedy workplace harassment that has taken place, including punishing the perpetrator in the form of progressive discipline or employment termination, or  provide ongoing training.

If an employee feels their internal complaints to stop workplace harassment have not been fully addressed, they may be able  to file a complaint to escalate a workplace health and safety or workplace harassment concern. In fact, Ontario health and safety law encourages employees (where practical and safe) to report your situation and discuss their concerns with a supervisor or employer. However, if the situation continues after the employee has tried to discuss his or her concerns, they can file a complaint with the Health and Safety Contact Centre.

Constructive Dismissal

In some cases, an employee experiencing significant workplace harassment may be able to pursue a common law remedy of constructive dismissal. Under Ontario employment law, a constructive dismissal means an employer has made a significant, unilateral change to the terms and conditions of an employee’s job without the employee’s permission. This can include many different types of significant changes, including:

  • major salary reduction (e.g., 20% lower salary or removal of a hefty annual bonus)
  • demotion
  • temporary layoff
  • refusing to pay wages or salary
  • workplace harassment

However, a constructive dismissal case is a risky option for employees to pursue in many cases. Specifically, employees are required to prove to a court that the employer’s conduct has actually been so significant as to result in a constructive dismissal. If a court agrees that a constructive dismissal occurred, the employee is usually entitled to receive a financial severance pay package (see here for explanation). On the other hand, if an employee resigns from their job and is eventually unable to prove a constructive dismissal, they may be found to have voluntarily resigned from their job, disentitling them from receiving a severance package.

Test for Constructive Dismissal

In a leading case called Potter v. New Brunswick Legal Aid Services Commission, the Supreme Court of Canada called clarified that constructive dismissal may arise in two ways:

  1. An employer commits a significant violation of an express or implied term of the employment contract; or
  2. An employer engages in serious conduct that generally shows that it intends to no longer follow its obligations under the employment contract.

Under this second option, a court’s analysis of a constructive dismissal claim is more flexible. Specifically, a court could find that an employer committed a constructive dismissal without identifying a specific fundamental term of the employment contract, as long as the employer’s treatment of the employee makes continued employment intolerable. For this purpose, the employee can rely on either a “single act” or the “cumulative effect of past acts”.

To illustrate, courts have found constructive dismissal by recognizing a general implied term violated by an employee, such as:

Human Rights and Discrimination

Under Ontario human rights law, employers must ensure that all employees have the right to equal treatment in their job without discrimination. Specifically, employees may be able to file a discrimination complaint if they believe they are experiencing workplace harassment based on one of the following prohibited grounds of unequal treatment:

  • Age
  • Race
  • Family status
  • Disability (mental or physical)
  • Ethnic origin
  • Place of origin
  • Disability (mental or physical)
  • Colour
  • Race
  • Citizenship
  • Creed
  • Sex
  • Citizenship
  • Prior record of offences
  • Marital status
  • Sexual orientation

For employees who work for a provincially-regulated employer in Ontario, the Human Rights Code is the law that protects them against discrimination in the workplace.  For employees who work for a federally-regulated employer in Ontario (e.g., banks, airlines and telecommunication companies), the Canadian Human Rights Act prohibits discrimination in the workplace.

Some typical examples of human rights or discriminatory violations of employee rights at work include issues involving unfair hiring practices, wrongful dismissal, constructive dismissal, sexual harassment or not accommodating an employee’s workplace disability.

Other Ontario Employment Law Claims by Employees Related to Workplace Stress

If an employee’s situation justifies pursuing their rights under common law, such as a wrongful dismissal claim resulted from a termination of employment or a constructive dismissal claim, they may be able to seek other damages as a result of suffering significant work-related stress, anxiety or depression, such as:

  • moral/aggravated damages
  • breach of the duty of good faith, honest contractual performance and fair dealing
  • punitive damages

In Colistro v Tbaytel, 2019 ONCA 197, the Ontario Court of Appeal clarified that employees may also be able to pursue another claim: intentional infliction of mental suffering. To succeed in such cases and obtain additional damages (money), an employee must prove the employer’s wrongful behaviour satisfies all of the following elements:

  1. Flagrant or outrageous conduct (objective requirement)
  2. Calculated to produce harm (subjective requirement)

– proving that the employer intended to produce the kind of harm that occurred or have known that it was almost certain to occur” [Boucher   v Wal-Mart Canada Corp.].  However, while it is not enough to show only that the employer ought to have known that harm would occur,     the employer only has to show that the employer knew that the harm is serious psychological injury, even if the particular psychiatric illness is unclear.

        3. Resulting in a visible and provable illness (objective requirement)

– the employee must prove that the harm was intended or known to be substantially certain to occur; it is not enough to ground an intentional tort.

Call Today for Help

If you are an employer or employee who needs assistance in dealing with workplace harassment or discrimination, or wish to discuss a potential claim of wrongful dismissal or constructive dismissal to seek severance pay package please contact, please contact Bune Law at 647-822-5492 arrange a consultation with an employment lawyer in the Toronto area, so that we can discuss your specific employment matter in detail, explain employment law as it applies to your situation, and then determine whether you need our assistance and how we can help.

For employers needing assistance in responding to a constructive dismissal or wrongful dismissal claim, or preparing a severance package for termination of employment, it is important to consult with an experienced employment lawyer to discuss your options and obligations under Ontario employment law.

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