Canadian Employment Law Today

Cases and Trends Cases and Trends Canadian HR Reporter, 2020 6 | | May 6, 2020 May 6, 2020 new contract for the position, which included a 12-month probationary period. The termination provision allowed for without-cause termina- tion with no notice for the first three months of the probationary period and one week's notice for the remainder of the probationary period. At the end of the probationary period, Gibb was subject to the same notice provisions as she had in the director of finance position. Things went well for Gibb in the corporate treasurer role for several months. She reported di- rectly to Palliser's superintendent and interacted with him every day. However, in November 2011, Gibb and the superintendent were driving back from a con- ference and they had a conversation about how Gibb was doing as corporate treasurer. At one point, the superintendent began to question her performance and suggested she should return to the director of finance role. Shortly thereafter, the superintendent received a phone call about another employee who was transitioning to his former position. He commented that "he didn't have the right person in the right seat of the bus" and said they should be moved to another posi- tion. Gibb thought the call was about her and be- came emotional. She cried through the rest of the conversation and thought the superintendent was angry with her. Gibb met with her mother after she got home and said the superintendent had been yelling and screaming at her. The superintendent denied being angry and met with Gibb the next day to discuss the is- sues raised in the car ride. By the end of the meeting, they were both satisfied she was meeting the expectations of her role. Gibb subsequently received positive performance evaluations in May 2012 and May 2013 as well as a pay raise. Disagreement over employee discipline Things were good between them for two years until the fall of 2013, when Gibb received com- plaints about an employee who reported to her. The employee provided administrative support to senior administrators and the complaints came from senior administrators and school staff. Gibb and another employee who worked with her investigated the complaints and were satis- fied with the employee's explanation, so no dis- cipline was given. The superintendent disagreed and told Gibb on Oct. 20 that the employee was to be dealt with by noon the following day — which Gibb believed meant she was supposed to fire the employee, although she didn't have the authority. After the call, the superintendent emailed a meeting agenda for senior admin- istrative staff that included the employee and said "solutions to various problems" were to be achieved immediately. Gibb felt intimidated by both the phone call and the email. The superintendent was angry that the prob- lem employee wasn't dealt with as he said he continued to receive complaints. Gibb believed that the superintendent said her job would be in jeopardy if the employee wasn't dealt with, but Gibb maintained that disciplining the employee wasn't necessary. Eventually, in early November, human resources handled the issue and the em- ployee remained in their position. Gibb began having issues with the super- intendent's behaviour, claiming he would yell, swear and use other intimidating tactics. On two occasions, the superintendent put his hand on her back and neck as he leaned over her shoulder in the office. She felt this touch- ing was inappropriate, although she noticed he touched other employees similarly, both men and women. On Nov. 4, Gibb met with the Palliser board and provided a detailed series of notes about what she perceived as bullying and harassment by the superintendent. She described the car ride discussion in November 2011, the hard time she received related to the employee she refused to discipline, the inappropriate touching and the superintendent's intimidation tactics. She also included a resignation letter and left her office keys, phone and computer. The resignation letter stated she was no lon- ger able to continue in her position as corporate treasurer because the working conditions were intolerable due to the superintendent's behav- iour. Gibb added that she would like to continue working for Palliser with a change in who she reported to, a salary increase and recognition of overtime hours, concluding that "Should Pal- liser Regional Schools determine that they wish to address the concerns I have raised in an ap- propriate manner, I am prepared to reconsider my resignation." Gibb proceeded to sue Palliser for constructive dismissal, claiming that her resignation was the "result of a toxic work environment rife with bul- lying, inappropriate touching, and intimidation tactics that resulted in an ultimatum being put to her that if she did not discipline a subordinate employee as directed, her job was at risk." Clear resignation The court found that Gibb's resignation letter brought the superintendent's behaviour to the Palliser board's attention and indicated she was willing to reconsider her decision to quit if her demands were met. However, it was clear that her demands weren't limited only to a toxic work environment or the removal of the superinten- dent — she also wanted more money. While she said she would consider returning to her employ- ment with Palliser, Gibb's letter and her actions in returning the keys, phone and computer could objectively "only be understood as a resigna- tion," the court said. The court also found that Gibb was not con- structively dismissed. The conversation during the November 2011 car ride upset Gibb, but much of her emotional distress came from her erroneous assumption that the superintendent's phone call was about her. In addition, they met the next day and resolved the matter, both feeling satisfied with the outcome and Gibb had posi- tive performance reviews and experiences over the next two years. "When assessed from the perspective of a reasonable person as a stand-alone event, the November 2011 car ride is not so egregious as to constitute a fundamental breach of the contract, or create an intolerable work environment," the court said. As for the superintendent's anger over Gibb not disciplining the employee, the court found that she wasn't ever required to discipline or terminate the employee to keep her job and the superintendent couldn't really threaten her job over it — Gibb had no authority to fire the em- ployee and the superintendent had no authority to fire Gibb. In fact, the employee in question continued to work for Palliser after Gibb re- signed, the court pointed out. The court also found that, while it was likely the superintendent got angry at times with yell- ing, could be demeaning and touched Gibb on the back and neck, there was no specific evidence that this created a toxic work environment. Gibb didn't make any complaints until her resignation letter after years of working with the superinten- dent, she didn't comment on his performance during his annual performance evaluations and she said she had a positive, supportive relation- ship with him in the two years between the car ride conversation and the issue with the employ- ee discipline. The court also noted that there was no indi- cation the superintendent showed a specific pat- tern of conduct directed at Gibb; rather, everyone experienced the yelling and touching equally and none of it was directed at her. In addition, the touching wasn't sexual in nature and Gibb never complained under the framework of the respect- ful workplace policy. The court determined that a reasonable person in Gibb's position would not have determined that her work environment was made intoler- able so as to make continued performance of the terms of her employment contract impossible. Gibb's complaint was dismissed. For more information, see: • Gibb v. Palliser Regional School Division No 26, 2020 ABQB 113 (Alta. Q.B.). « from SUPERVISOR'S on page 1 Worker satisfied after meeting with supervisor to discuss expectations

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