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Remember who calls the legal shots at work Add to ...

Sometimes employees too easily confuse who gets to call the legal shots in the workplace. Believing that their job is an entitlement, they try to take the law into their own hands. But what happens when an employee gets that law wrong?

A recent B.C. court decision on constructive dismissal details how things can go awry. It involved the case of Barbara Danielisz, who supervised the custom department at Hercules Forwarding Inc. in New Westminster, and eventually wore out her welcome. Ms. Danielisz often butted heads with other female staff in the office, badmouthing them and making her criticisms known.

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Matters came to a head when Ms. Danielisz returned to work after an appointment and was ignored by the worker who had to fill in during her absence. Ms. Danielisz responded by cursing the woman and saying she would get her fired. But when Ms. Danielisz tried to suspend her, she was overruled by her boss, who thought it was unwarranted. Unable to discipline her staff, Ms. Danielisz felt betrayed.

At a meeting held shortly after to sort out the ongoing conflicts in the workplace, Ms. Danielisz was singled out as a cause of the tension, which did not sit well with her. When one of the other women began to cry, Ms. Danielisz left the workplace, saying she was ill.

A few days later, she sent a letter to her supervisor asserting that the workplace was toxic and unbearable and implying that Hercules needed to dismiss her subordinate before Ms. Danielisz could return. If not, she suggested that the company should pay her severance to leave, rather than requiring her to return to her job.

The company was not impressed with her ultimatum and treated her actions as a resignation – and so did the judge who recently dismissed her case.

In siding with the employer, Madam Justice Elizabeth Arnold-Bailey of the B.C. Supreme Court found that Ms. Danielisz was the author of her own workplace misfortune. She was often the origin of the workplace discord and was in no position to demand that her employer fire another worker as a condition of her return to work, the judge found. An employee may believe that the workplace is unpleasant, but that is not a good enough reason to vanish from work and demand compensation, the judge ruled.

By issuing an ultimatum, Ms. Danielisz simply lost sight of who was entitled to call the shots. When this occurs, an employer may be able to treat an employee’s actions as insubordination, or worse – as Ms. Danielisz learned – an unintended resignation.

This decision serves as a reminder that employers own their workplaces and have the right to manage them as they see fit, even if the employees disagree. While those employees do retain certain rights, insisting the job is intolerable without a proper foundation is usually a poor option.

Both employees and employers should consider the following key points:

– Employees cannot refuse to work without indicating that they intend to return. Hercules gave Ms. Danielisz one final chance to resume her employment, which was wasted when she insisted she had been wronged. What she should have done was to maintain her assertions but confirm that she still wished to return.

– Employees get little sympathy from the courts when they complain about conduct that they either condoned or brought upon themselves. The judge found that Ms. Danielisz’s style instigated many of the confrontations that she claimed ultimately caused her to leave.

– Although Ms. Danielisz played her cards wrong, there are many situations where a workplace conflict does legitimately render continued employment intolerable. This area of the law can be very tricky. The key is to get good advice from the outset.

Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. E-mail: Dan@canadaemploymentlawyer.com

Have a question about careers, labour law or management? Send it to our panel of experts: careerquestion@globeandmail.com Your name and address will be kept confidential.

Follow on Twitter: @danlublin

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