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Divorce and Smoking Causes Work Problems

Expert: Howard Levitt

Daniela asked:

I am working for a company which is running out of the owner's home (basement converted to office). Currently he is going through a divorce and both parties still live in the home. His wife has been harassing me with details of the divorce and has had verbal blow ups with me because she wants me to side with her. I have remained neutral through this. Ultimately, I have had to leave the workplace due to another verbal blow up she had with me for fear of what might happen next. Can this be viewed as constructive dismissal? What other resources do I have (i.e. Harassment).

Also she has continued to smoke in the house although I am allergic and made that known. The smoke penetrated the whole house, what should I be doing?

Howard Levitt answered:

Since you took a job which was located in a private home, you were in a position to inquire about whether there were any smokers at the residence. In those circumstances, that would not be viewed as a constructive dismissal.

The issue of the verbal blowups and his wife confronting you MIGHT be viewed as a constructive dismissal. The answer would depend on whether you made reasonable efforts to get the parties involved (husband and wife) to stop involving you. Also, it would depend on whether the extent of the involvement would be sufficient that the average person would find the workplace to be intolerable as a result.

If it was deemed to be intolerable, the court would treat you as if you had been wrongfully dismissed.

Ultimately, it depends on how long each of these problems ie smoking and open discord have gone on. You lose your rights if you fail to diligently and quickly enforce them. If this has perdured for many months, it is likely too late to do anything. Otherwise, the test is whether a reasonable normal person would find conditions of work intolerable. If so, you can resign and sue for constructive dismissal.

About the author

Howard Levitt, Counsel to the national law firm Lang Michener. He is author of, The Law of Dismissal in Canada, The Quick Reference Guide to Employment Law and an upcoming book on Canadian Hiring Law. He is Editor In Chief of the Dismissal & Employmnet Law Digest.

Phone: (416) 307-4059
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