Employment lawyer discusses an employee's options when dealing with a toxic workplace
When one-third of a person’s week-day existence is spent in an environment that seems to be either triggering existing mental health conditions, or creating new ones, quitting may appear to be the correct move.
But Antonio Urdaneta, an employment law expert and founder of Workplace Legal, says there are other avenues to explore first.
First is accommodation. Under provincial human rights codes and the Canadian Human Rights Act, employers are required to accommodate disabilities, including mental health disabilities.
Employers are required to accommodate disabilities to the point of undue hardship. To determine undue hardship, the employer must consider factors such as costs and health and safety risks, according to the Human Rights Legal Support Centre (HRLSC). Factors that may not be considered include “undue business inconvenience, resentment or hostility from other co-workers, the operation of collective agreements or customer preferences.”
As the term, undue hardship, indicates, employers are required to accept some amount of hardship, notes the HRLSC. The accommodation being expensive will not rise to the level off cost-related undue hardship. The accommodation would need to “seriously interfere with running the business.”
If time off is the necessary accommodation, the employee and employer must discuss how this will be paid for, says Urdaneta. There are programs available with the Canadian Pension Plan and the Workplace Safety and Insurance Board, if the employer is registered and the employee qualifies. Going on short-term disability is also an option in some cases
If the mental health difficulties stem from the workplace environment, and the employee has alerted their bosses to the situation, the employer has a responsibility, under the Occupational Health and Safety Act and the Canada Labour Code’s health and safety regulations, to review.
“It's important to review the workplace culture,” he says. “Are we talking about harassment? Are we talking about sexual harassment? Are we talking about discrimination? Are we talking about violence in the workplace?”
The requirement to conduct an investigation is triggered from any incident or complaint. That means the employee does not need to bring the complaint in writing or say it out loud. As long as the employer is aware, they must act, says Urdaneta.
If the employee has a persuasive argument that the workplace is causing a mental disability, they may have a case for constructive dismissal, he says. A constructive dismissal occurs when the employer has altered the terms of employment in a way that breaks the employment contract and effectively forces the resignation of the employee. The employer then may then owe them severance and/or notice-of-termination pay.
“If the constructive dismissal allegation is strong, the employee may want to negotiate a package. But it is argument based. It is fact specific.”
Also, if the employment caused the disability, and there is no WSIB or other insurance to cover it, the employee can bring a claim to court for damages from the employer’s breach of its duty of care, says Urdaneta.
While always unpleasant, the conduct of the employer can make terminations particularly distressing. In the rare cases where the employer’s “unfair” or “bad faith” conduct caused mental distress, the former employee can get aggravated damages, writes Sarah Molyneaux in a blog for McMahon Molyneaux Henriquez Labour & Employment Lawyers.
This conduct must rise above the “usual stress and hurt feelings” which accompany any termination, and include medical evidence of their distress – for example, a psychiatrist’s opinion, said Molyneaux. For employer conduct which is “harsh, vindictive, reprehensible and malicious or extreme,” judges can also order punitive damages, she said.
