The Court of Appeal of Ontario has recently affirmed the Colistro v. Tbaytel decision from the Superior Court. This case involved allegations by an employee who commenced an action for constructive dismissal, intentional infliction of mental suffering, and wrongful dismissal.
Colistro worked for Tbaytel, and its predecessor, the City of Thunder Bay, for nearly 20 years. Tbaytel announced the hiring of a new employee as the Vice-President of Business Consumer Markets. Before Tbaytel had taken over from the City of Thunder Bay, the new employee was Colistro’s supervisor at the City of Thunder Bay. Before the new employee commenced his employment with Tbaytel, Colistro advised Tbaytel that she had been sexually harassed approximately 11 years earlier in her former employment by the potential new hire. Tbaytel made inquiries, and it was informed by the previous employer that the individual had not been interviewed regarding the allegations, and his employment was not terminated for cause, but the complaints against him were part of the reason of termination.
Tbaytel decided to hire the employee despite the concerns being expressed by Colistro. Tbaytel offered to provide accommodations to Colistro by transferring her to an equivalent position in a different building but this offer was refused. Colistro would not accept anything other than Tbaytel not hiring the new employee. Colistro went off work on stress leave and never returned to work. She was diagnosed with Post-traumatic Stress Disorder and depression. She commenced a claim seeking damages for constructive dismissal and intentional infliction of mental suffering.
Constructive dismissal arises when an employer’s conduct demonstrates an intention to no longer be bound by the employment contract. A constructive dismissal can arise either (a) when a specific term of employment (e.g. salary, hours of work) is unilaterally and fundamentally altered or (b) where the employer’s treatment of the employee makes continued employment intolerable, which typically arises when there is a failure to address harassment, bullying or violence in the workplace. In this case, the Court determined that continued employment was intolerable because of the employer’s decision to hire the new employee.
The trial judge found that Tbaytel’s actions made continued employment intolerable such that the decision to hire the employee amounted to constructive dismissal. The trial judge found that Tbaytel’s decision re-victimized Colistro and minimized the past conduct. The Court found that the employer’s decision to move forward with the hiring was demeaning and dismissive, and found that the employer decided to proceed with the hiring of an individual “whom they knew had previously sexually assaulted one of their apparently valuable employees, who had an unblemished 20-year history with the company” and who was vehemently opposed to her “abuser” being hired. She was awarded 12 months’ notice and $100,000 in compensatory damages arising from the manner of dismissal.
The employer appealed the decision. It argued that a single act by the employer cannot amount to constructive dismissal; namely, the communication with the employee that they had elected to proceed forward with the hiring. The employer argued that the subjective feelings of the employee, rather than an objective standard of reasonableness, could also not support the finding of constructive dismissal. The Court of Appeal rejected the appeal and concluded that a single act can determine a finding of constructive dismissal and that a single act can render continued employment intolerable. The Court of Appeal found that the trial judge’s conclusions on constructive dismissal were proper. The Court of Appeal also noted the objective reasonable bystander test (what would a reasonable person do in the same circumstances?) was properly applied by the trial judge.
Intentional Infliction of Mental Suffering
The trial judge summarized the three elements of the tort of intentional infliction of mental suffering being the following: (a) flagrant or outrageous conduct; (b) calculated to produce harm; and (c) results in a visible and provable illness. The trial judge found that the first and third elements were established, the second element of the test was not. In order for the second part of the test to be made out, a plaintiff has to show that the defendant “intended to produce the kind of harm suffered or have known that it was almost certain to occur”. There was no allegation that the employer’s conduct was calculated to produce harm or that the harm (PTSD, or depression) was substantially certain to follow from hiring this employee. The Court of Appeal agreed that the damages claimed by the employee were not certain to follow from the decision to hire this employee.
This case indicates that previous history between employees may be a factor to consider when hiring a new employee. A question arises about how far an employer is required to investigate past allegations of harassment before hiring an individual. In this case, a factor was the existing relationship between the predecessor employer and the current employer. The current employer was in a unique position to make inquiries about what transpired 11 years ago, including having access to documents related to that harassment complaint. This may not be possible in the typical hiring scenario but the case does stand as a caution to employers to take complaints from existing employees about new hires seriously and to properly consider past allegations of harassment about individuals before making hiring decisions.