Written by Daniel Standing LL.B., Editor, First Reference Inc.
No one wants to work in a toxic work environment. Some may persevere despite the negativity. Others may make a formal complaint and await an investigation, while others may resign. In Gibb v. Palliser Regional School Division No 26, 2020 ABQB 113 (CanLII), Madam Justice J.C. Kubik considered the plight of an employee who chose the third option and then sued her former employer alleging constructive dismissal. Before rejecting the claim, the court summarized the law on resignations and constructive dismissal. Ultimately, while an employee may feel that a workplace is intolerable, his or her perception of workplace toxicity is not determinative. That perception must also be objectively reasonable.
Michelle Gibb, the plaintiff, began working for the school division in 2009 as the Director of Finance. She was later promoted to the position of Corporate Treasurer, a role which included new supervisory responsibilities and daily contact with the school division’s Superintendent, Kevin Gietz. At first, Ms. Gibb felt supported in her role. She testified that during a car ride with Mr. Gietz in November 2011, things changed. She said that Mr. Gietz questioned her performance, suggesting in an angry and demeaning tone that she was incompetent. Mr. Gietz remembered the incident differently, stating that the conversation was to determine whether Ms. Gibb was coping with her new responsibilities or whether she felt she wished to return to her previous position as Director of Finance. In each of the two years after the car ride, Ms. Gibb had two positive performance evaluations and a pay raise. She testified that the next instance of Mr. Gietz bullying her was in September 2013, when she was asked to discipline an employee identified as XY.
XY provided administrative support services and reported directly to Ms. Gibb. School staff’s complaints about XY’s performance and attitude were brought to Ms. Gibb who, after delegating the investigation of the complaints, determined that no disciplinary action was warranted. Mr. Gietz directed Ms. Gibb to deal with the situation, and later instructed her to give XY a letter of reprimand. Ms. Gibbs remained adamant that XY had done nothing to deserve discipline, so she decided not to take action against XY. Ms. Gibb perceived Mr. Gietz to have threatened her continued employment if she did not discipline or terminate XY.
Ms. Gibb alleged that Mr. Gietz’s behaviour created a toxic workplace. She described him as an intimidating, foul-mouthed bully. She told of incidents when Mr. Gietz would place his hand on her back between her shoulder blades, or on the back of her neck. She also testified that Mr. Gietz once undermined her performance in front of auditors. However, prior to her resignation, Ms. Gibb never complained about Mr. Gietz to anyone-not even when she had the chance to do so anonymously as a participant in Mr. Gietz’s annual evaluation process.
On November 1, 2013, Ms. Gibb had the day off. She wrote a 16-page letter of resignation in which she outlined many of her interactions with Mr. Gietz and her complaints about the workplace. She met with several school board members to discuss and hand over her letter, along with her office keys, phone and computer. On November 8, 2013, the Board sent her correspondence indicating it accepted her resignation.
Ms. Gibb’s claim for constructive dismissal focused on three main issues: the November 2011 car ride, the disciplinary action of XY and the general atmosphere of toxicity, including bullying, intimidation, profanity and inappropriate touching.
The court’s decision
Justice Kubik began her analysis on voluntary resignation by noting that an employee who voluntarily resigns has no remedy through a wrongful dismissal claim. A binding resignation must be clear and unequivocal. The legal test is both objective and subjective: Did the employee intend to resign, and would a reasonable employer understand that the employee had resigned?
Ms. Gibb’s resignation letter described the intolerable nature of the workplace, but her resignation was conditional: She said she could not return to the workplace unless Mr. Gietz was removed and various other conditions were met, including a salary raise and recognition of overtime. The court concluded Ms. Gibb’s demands were not particular to her allegation of a toxic work environment or the removal of Mr. Gietz. The court concluded that the facts met the legal test: Ms. Gibb voluntarily resigned from her employment.
The court then dealt with constructive dismissal, stating that it can arise in one of two ways: first, when there is a breach of an express or implied term of the employment contract, and second, when the employer demonstrates that it no longer intends to be bound by the terms of the contract. It is an implied term of any employment contract that the employee will work in civil, decent, respectful and dignified conditions. Therefore, a toxic work environment will breach this implied condition.
In this case, the events did not amount to a constructive dismissal. The November 2011 event was a standalone incident with no impact on her continued good performance as shown by the two positive performance evaluations. The car ride could not be considered so egregious as to constitute a fundamental breach of the contract. Similarly, the court concluded that Ms. Gibb’s perception of the situation involving XY was distorted due to Ms. Gibb’s misinterpretation of events.
The court was unable to conclude that the workplace was toxic. Ms. Gibb’s own actions undermined her position: she engaged in office-related social events, regularly communicated about humorous events that occurred at meetings and had installed a beer fridge in the office at one point. The evidence of other employees was inconsistent and did not substantiate Ms. Gibb’s claims of a toxic workplace. Although the court was satisfied that Mr. Gietz was generally disliked by his subordinates, the atmosphere was not as bad as Ms. Gibb described it to be. Having failed to prove that she was constructively dismissed, her action was dismissed.
Takeaways for employers
Employees leave their positions for a variety of reasons. Sometimes an employment relationship sours over time due to a buildup of isolated incidents that, when viewed objectively, are not serious. This case illustrates the importance of ongoing communication between the parties as problems arise. Through discussion, the parties can defuse misperceptions that would otherwise contribute to a ticking timebomb resulting in potential legal consequences.
When an employment relationship ends acrimoniously and the employee quits, employers should bear in mind the applicable legal test. As Ms. Gibbs learned firsthand, an employee who thoughtfully and methodically tenders a resignation will likely have to live with the consequences of that decision. In more ambiguous circumstances, or when the employee purports to quit in a spontaneous, emotional outburst, employers must be careful not to automatically accept a resignation at face value.