My team all resigned from a toxic workplace without giving notice. Can our boss sue to make us return?

This blog was originally published in the Globe and Mail on November 1, 2022

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.

Resigning without proper notice or “wrongful resignation” (which is covered more fully here) 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.

The above is provided as general information only. Questions related to resigning your job or being terminated may involve complex legal issues. Contact us today if you would like to consult with our lawyers.