Failing to give employee proper equipment

Question: If an employee needs a certain piece of equipment but the employer is slow to provide it, is there a potential for constructive dismissal or any other liability if the job is more difficult or more stressful because of the equipment’s absence?

Answer: A constructive dismissal will only be found to exist where the employer unilaterally imposes a fundamental change to the employment relationship. In order to determine whether a particular situation meets this test for constructive dismissal, one needs to ask whether a reasonable person in the same position would have considered the essential terms of the employment contract to have been substantially changed. The term or terms must have been significantly altered before the change will be considered fundamental. It is the degree of change which is important. With the respect to the unilateral imposition of the change, it is important to note that the terms will not be considered unilaterally imposed if the change is expressly accepted by the employee or where the change is condoned. If the employee does not convey her opposition to the change within a reasonable time frame, then they will be viewed as having condoned it.

Constructive dismissal can also be found to exist in cases where employer conduct renders continued employment intolerable to the employee. Courts will consider, in these cases, that there has been a breach of the fundamental implied term of any employment contract to treat employees with decency, civility and respect.

In this context, the absence of the equipment will only provide grounds for constructive dismissal if it represents a significant change in the employment relationship (what was promised to the employee). Alternatively, the absence of the equipment must render the working environment intolerable to the employee. To this end, if the employee has continued working with the available, although inferior, equipment for a considerable period of time, they may be viewed to have condoned the employer’s conduct. In sum, unless the absence of the equipment significantly alters the employment contract or renders the working environment intolerable, then it is likely to be considered insufficient grounds for constructive dismissal.

If constructive dismissal is found, the employee has a duty to mitigate in these circumstances. The obligation generally requires employees to seek alternate employment. This duty does not impose upon the employee an obligation to accept any position available, but she is obliged to make reasonable efforts to find comparable employment.

There is another area of liability that may be of greater concern however. Occupational Health and Safety legislation in Canada often places a duty on the employer to ensure the health, safety and welfare of all of its workers in the workplace. Further, it often prescribes that the employer has a duty to provide and maintain certain equipment as per provincial regulations in this area.

If the employer’s failure to provide certain equipment is making the work dangerous for the employee to perform or puts the employee’s health, safety or welfare at risk, then the employer could be held liable pursuant to occupational health and safety legislation. Further, if the piece of equipment is one that is prescribed in the applicable provincial legislation and must be provided, then the employer will also be held liable for the failure to provide that particular piece of equipment.

The statutory regime across Canada also provides an employee with the right to refuse to perform dangerous work. If an employee is unable to perform work because it is dangerous or unsafe and refuses to do so, then it is possible that the workplace may be rendered intolerable. As such, there is a risk that the situation could provide the grounds for constructive dismissal. However, the statutory regime also sets out the procedures for reporting dangerous workplace environments and seeking the compliance of the employer. In light of these mechanisms, and an employee’s duty to mitigate, it is likely the employee could not reasonably make a claim for constructive dismissal without first having gone through the appropriate occupational health and safety channels and thus giving the employer an opportunity to rectify the situation.