Law Times

Page 10 November 11, 2013 Law Times • Focus On Labour & Employment Law Appeal court decision on poisoned workplace claims a win for employers BY MICHAEL McKIERNAN For Law Times A n Ontario Court of Appeal decision that overturned an autoworker's successful constructive dismissal claim gives a boost to employers that want to stand their ground against protracted complaints about poisoned work environments without exposing themselves to legal action, say employment lawyers. Yohann Johnson originally won $160,000 in damages from his employer when the trial judge found it had constructively dismissed him after he suffered racism in the workplace. But in General Motors of Canada Ltd. v. Johnson, the unanimous threejudge appeal court panel reversed the decision after labelling the lower court judge's key findings "unreasonable and unsupported by the evidence." In 2005, Johnson, an eightyear veteran at GM's Oshawa, Ont., assembly plant, took a medical leave of absence related to disability as a result of discriminatory treatment at work. Johnson was unhappy after three separate management investigations turned up no evidence to support his complaint that a fellow worker, Alex Markov, was racially motivated when he refused to attend training under him. Two years later, GM deemed Johnson to have resigned when he turned down the auto giant's efforts at accommodation and refused to return to work despite getting a clean bill The appeal court decision was a 'complete vindication' of GM's position throughout the dispute, says Brett Ledger. of health from the plant doctor. The appeal judges noted the onus is on the plaintiff to establish a claim of a poisoned workplace and that the test is an objective one. "A plaintiff 's subjective feelings or even genuinely-held beliefs are insufficient to discharge this onus," they wrote in the July 31 judgment. "Even if Markov's absence from his GMS training session were racially-motivated — a conclusion that I regard as unreasonable and unsupported by the evidence — this alone would not support a finding that the assembly plant body shop was poisoned by racism, warranting a finding of constructive dismissal. As a matter of law, the offending conduct must be persistent and repeated unless the incident in question is sufficient, standing alone, to taint the entire workplace.  That is not this case," they added. Brett Ledger, a partner with Osler Hoskin & Harcourt LLP in Toronto who represented GM at the appeal court, says the decision was a "complete vindication" of his client's position throughout the dispute. "You must approach these things from an objective perspective — that of a reasonable person — and not from within the mind of a complainant," he says. "They may have strongly held beliefs that what was done was racism and may indeed have suffered emotionally, as probably happened here, but that's not the test." Stuart Rudner, co-founder of Toronto employment law boutique Rudner MacDonald LLP, says poisoned workplace claims have become increasingly popular in recent years. "Unfortunately, a lot of people seem to think every unpleasant incident at work can be properly described as either harassment or poisoning the workplace and as a result you see a lot of fairly flimsy or baseless claims," he says, noting Johnson may go some way to redressing that balance. "The message for employers is that they should always take concerns seriously and investigate them properly. But at the same time, if after properly investigating they conclude there's no merit to the complaint, they shouldn't be forced into taking action that's not necessary." Ranjan Agarwal, a Bennett See Racism, page 14 Ball Professional Corporation NOT TOO BIG. NOT TOO SMALL. We are a law rm that combines experience, leadership and teamwork. We align best practices with exibility and pragmatism. We have an innate appreciation for each client's unique challenges. Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal If this sounds like the right t for you, you've discovered Right-sized ThinkingTM. Find out how this approach can assist you. Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Employment & Labour • Wills, Estates & Trusts 82 Scollard Street, Toronto, Canada, M5R 1G2 Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com Untitled-1 1 www.lawtimesnews.com 2:35 PM 13-11-06 all_LT_Nov7_11.indd 1 11-11-08 11:44 AM

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