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ARTICLE · 15 DECEMBER 2005

Can Sexual Harassment Amount to Constructive Dismissal?

Borden Ladner Gervais LLP
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The interplay between the common law and statutory human rights is increasingly an issue in the employment law realm. While fascinating from an academic perspective, the overlap between human rights and common law can prove to be troublesome for employers. Employers now risk being faced with a doublebarreled attack from disgruntled former employees who proceed concurrently with a human rights complaint and a wrongful dismissal action.

CanadaEmployment and HR
Shelley-Mae Mitchell
Shelley-Mae Mitchell
Sara Gittens
Sara Gittens
Author LinkedIn connections

The interplay between the common law and statutory human rights is increasingly an issue in the employment law realm. While fascinating from an academic perspective, the overlap between human rights and common law can prove to be troublesome for employers. Employers now risk being faced with a doublebarreled attack from disgruntled former employees who proceed concurrently with a human rights complaint and a wrongful dismissal action.

One of the areas where this overlap can be clearly seen is in some recent decisions considering allegations of harassment, including sexual harassment, as the basis for a constructive dismissal claim at common law. One of the issues faced by employees in bringing human rights complaints is the relatively short limitation period (for example, six months in British Columbia and Ontario). If that time has passed, creative counsel will "reframe" what may be a human rights complaint for sexual harassment as a claim for constructive dismissal based on sexual

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