How can sexual harassment in the workplace lead to constructive dismissal?

A recent decision of the Ontario Court of Appeal has shed light on “re-victimization” those who have suffered sexual harassment in the workplace. It is a shocking tale of a company that fired, and then re-hired, a man against whom there were credible sexual harassment complaints.

This case, Colistro v Tbaytel, raises a number of interesting questions. What’s more, it brings some much needed empathy for victims of sexual harassment. And it shows how flexibly constructive dismissal laws can be interpreted.

 The reactions of the complainant and other employees to the employer’s actions are an important part of the narrative and must be assessed in a constructive dismissal claim.

Before we delve into this case, let’s refresh ourselves, briefly, on the concepts of sexual harassment in the workplace and constructive dismissal.

What does it mean to be sexually harassed?

In Janzen v. Platy Enterprises Ltd., the Supreme Court of Canada gave the following sexual harassment definition: “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job‑related consequences for the victims”.

What is constructive dismissal?

Also known as ‘disguised dismissal’, constructive dismissal can be defined as unilateral actions of the employer to change the terms of employment in such a way that you are forced to quit. There don’t need to be multiple incidents that prove constructive dismissal; a single incident is sufficient too.

“Re-victimizing”: A recent case of sexual harassment in the workplace

Colistro v. Tbaytel has shed light on the vulnerability of sexual harassment victims. It has also shown how employers’ actions can, even unwittingly, lead to constructive dismissal.

The case involves a woman, Linda Colistro, working at Tbaytel, a Thunder Bay telecommunications company. In the 1990s she and other female staff at the company complained of sexual harassment in the workplace by a male supervisor. Subsequent to an inquiry, he was dismissed; however, this was a without-cause termination and he received severance pay.

11 years later, he was rehired by the company in a more senior role. Ms. Colistro raised objections to the company about his past. However, the hiring went ahead. Instead, the company offered to transfer her to an equivalent position in another building, which she refused. Ms. Colistro suffered PTSD and did not return to work thereafter.

At trial, the court found that she had been dismissed constructively. It was a ruling the Ontario Court of Appeal upheld. It added that Tbaytel’s conduct was “demeaning, dismissive and re-victimized the plaintiff”.

Takeaways from this case:

• Courts will take a flexible approach to the constructive dismissal and sexual harassment definitions
• A single incident is sufficient to prove constructive dismissal
• Employers should be very mindful of sexual harassment complaints
• Employees claiming compensation for mental suffering may have to show the employer intended to cause harm
• $100,000 award in favour of Ms. Colistro was justified; compensation would have to be determined case-by-case

Have you been constructively dismissed through sexual harassment in the workplace?

It is impossible to exhaustively list out examples for constructive dismissal due to sexual harassment. However, a few indicators could be, if after you a raise a complaint about sexual harassment in the workplace:

• You are demoted or your career progression is curtailed
• Your performance evaluation suffers unfairly
• You are branded a ‘troublemaker’ in the company
• You are denied a raise without cause
• Your employer fails to act on your sexual harassment complaint

Is there a time limit for bringing sexual harassment claims?

The Ontario Limitations Act 2002 removes any time limits for sexual abuse and some sexual harassment claims. However, this area of the law is complex and requires expert advice. Every case of sexual harassment in the workplace is unique and must be discussed with an employment lawyer Toronto.

What is the limitation period for constructive dismissal claims?

It is advisable that you approach your employment lawyer immediately after dismissal. However, it is likely that a two year limitation period will be set on the claim. A qualified lawyer will know when to send a notice of claim to ensure that you are not caught out by the limitation period.

 

At Soni Law we know how incredibly unsettling sexual harassment in the workplace can be. An un-empathetic employer only adds to the unfairness of the situation. As experienced employment lawyers Toronto, we offer mature advice and a guiding hand. Get in touch with us if you have any employment concerns.