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THE QUESTION

I work with a team of eight employees in an extremely toxic workplace. Out of frustration, and for our mental health, we all resigned on the same day and walked out of the job. Our boss is now saying we have to return to work for two more weeks because it’s in our contract. Could he sue us if we don’t go back to work? I really cannot return to that work environment, even if for a two-week notice period.

THE FIRST ANSWER

Sarah Ewart, employment lawyer, Forte Workplace Law, Surrey, B.C.

Employers can sue employees for not giving enough notice before quitting (sometimes called “wrongful resignation”), but this does not commonly happen, and if you are leaving an unsafe or toxic workplace, there may be legal protections and defences.

Resignation notice may be required by contract, so your first step would be to check if this is in your contract, and then find out if the contract is legally binding. Even if there is no valid contract, you may owe a common law duty to the company to give notice before quitting if you are key to the company’s success (such as managers, officers and directors), especially when leaving in a group.

If your employer has treated you in a way that has made your employment intolerable, your resignation could be a constructive dismissal. When an employer creates a toxic work environment, this can be a fundamental breach of the employment agreement, which can be a constructive dismissal. If you have been constructively dismissed, your employer could actually owe you severance.

Provincial worker-safety laws also require employers to keep workplaces physically and mentally safe and permit employees to refuse unsafe work. Employers are not allowed to retaliate against their employees for exercising their health and safety rights. A lawsuit for wrongful resignation against employees who refuse to work in a toxic work environment could be seen as an act of retaliation by the employer (called a Prohibited Action in B.C.) and could make the employer liable for wage loss and other compensation.

THE SECOND ANSWER

Shibil Siddiqi, partner, Progressive Barristers, Toronto

Resigning without proper notice or “wrongful resignation” may, in certain circumstances, expose employees to liability. The law recognizes that workplaces come with their share of frustrations, and commonplace negative interactions in the workplace are generally not grounds for an employee to repudiate their employment contract.

That said, it is illegal for an employer to subject an employee to a toxic (or poisoned) work environment, or to fail to take prompt action to prevent or remedy such a work environment. A toxic work environment is created where there is objectively serious and wrongful behaviour including bullying, discrimination or harassment in the workplace that makes continued employment humiliating or intolerable. This behaviour must typically be persistent and repeated.

A toxic work environment is grounds for an employee to assert “constructive dismissal.” Constructive dismissal can occur when an employer is in fundamental breach of the employment agreement, including by subjecting an employee to a toxic workplace. In such circumstances, an employee can resign without any notice and can assert that they have been constructively dismissed. In fact, a constructively dismissed employee may be able to seek pay in lieu of notice from the employer in much the same way as an employee that has been terminated, and may also be entitled to additional damages.

It is an employee’s burden in court to prove a toxic work environment and constructive dismissal. These cases can be complex, and you should seek legal advice before deciding on a course of action.

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