Employer’s ‘highly inappropriate behaviour’ cited in constructive dismissal case
An employer's unannounced visit to an employee's apartment while she was on medical leave led to a $34,800 Small Claims Court award for constructive dismissal and human rights damages.
On appeal, Justice Spencer Nicholson of the Ontario Superior Court of Justice (Divisional Court) dismissed the appeal by 1788795 Ontario Inc., operating as Physical Relief Home Care.
It upheld the finding that the employer's principal, Elaine Knight, created a toxic workplace through a pattern of invasive conduct that included showing up unannounced at Jennifer Minkarious's home to demand a work cellphone.
When your boss shows up at your door
On Sept. 22, 2020, just one day after Minkarious began medical leave, Knight arrived at the employee's apartment without warning. Minkarious testified that Knight opened the door fully and walked past her, uninvited, demanding the work cellphone and questioning her medical leave.
When Minkarious tried to go to her bedroom to retrieve her laptop to remove personal information from the phone, Knight told her she could not leave the room with the phone.
Minkarious proceeded anyway and began downloading her personal information with Knight "hovering" above her. The process took so long that Minkarious simply performed a factory reset. A neighbour testified that she heard their voices from her upstairs apartment, and she took photos of the location of Knight's parked vehicle.
The court found the visit “inappropriate” and central to its constructive dismissal finding. Minkarious testified that the visit at her home made her “very upset.”
Privacy breach becomes evidence
After retrieving the phone, Knight accessed personal text messages between Minkarious and her sister. Rhe employer then relied on this private message at trial as evidence that Minkarious was unhappy in her job.
The court noted it was "highly inappropriate for Ms. Knight to have viewed and confronted Ms. Minkarious about this message at all."
In the days following the apartment visit, Knight sent multiple work-related texts despite Minkarious being on medical leave. These included a threat of legal action if Minkarious made slanderous comments about the company. Knight also sent invasive medical inquiries, writing "What did all the tests show?" and "So they still haven't found out what's wrong with you?" The latter question was repeated two hours later.
The court found that Knight "pestered" Minkarious for private medical information and made continual demands to attend meetings while the employee was on medical leave. This constituted both a failure of the duty to accommodate and a violation of privacy.
Why frustration doesn't justify discrimination
Deputy Justice D. Mailer found that Minkarious began working for the small home care company on Sept. 1, 2015 as a personal support worker and was promoted to executive assistant in January 2019, earning $43,000 annually. She had been constructively dismissed.
The judge awarded $14,800 in damages for constructive dismissal and $20,000 under section 46.1 of the Ontario Human Rights Code.
The court found that Knight’s frustration over a workplace error involving VON site visits led to mistreatment of an employee on medical leave. In his Reasons, Nicholson J. wrote that the deputy judge “made a specific finding that the constructive dismissal occurred as a result of the plaintiff’s disability,” noting as well that Knight took a “self-centred view” and was “less concerned” about the employee who had just gone on medical leave supported by a doctor’s note.
Justice Nicholson upheld the findings, stating: "One can certainly understand in the circumstances her complete sense of being overwhelmed by the defendant's egregious actions at the home visit and over the following four months."
