Learning from the 'Special One': Constructive Dismissal from Employment

Jose Mourinho: the self-proclaimed 'Special One', former Chelsea boss and brand-new Manchester United manager. In addition to his many successes, Mr. Mourinho is no stranger to controversy. In the most recent Premier League season after seeing his Chelsea side lose nine of the first sixteen league games, he was unceremoniously dismissed.

Shortly before his own dismissal, Mourinho became one half of a very public dispute with Dr. Eva Carneiro. Dr. Carneiro had been employed with Chelsea since 2009, before leaving her position as first team doctor in September 2015 and alleging constructive dismissal. In addition, Dr. Carneiro's lawsuit included an individual claim against Mourinho for sex discrimination and harassment.

While this case was brought in the United Kingdom, constructive dismissal applies equally in Ontario. Constructive dismissal is a term used to describe conduct, or requirements made of employees, which are so fundamentally at odds with their job that it amounts to a unilateral breach of the employment agreement. This breach allows then allows the employee to act as though he/she has been fired and seek damages for wrongful dismissal as a result. Constructive dismissal may result when an employee experiences any one of the following changes:

1. A change in overall remuneration: a significant decrease in salary.
2. A change in job content: a loss of all your supervisory responsibility.
3. A change in status: your title is changed from Chief Financial Officer to Office Administrator.
4. A change in work location: you have been working at the office in Ottawa for 19 years, and you are suddenly relocated to Guelph.
5. A change in work environment: your new supervisor repeatedly scolds and belittles you in front of your work colleagues, poisoning the work environment.

Dr. Carneiro's claim of constructive dismissal against Chelsea was based on the club's alleged failure to take any steps following her complaints about sexually explicit chanting at premier league games, a lack of female changing facilities at several matches, and the fact that she was regularly subject to sexually explicit comments from her work colleagues.

Dr. Carneiro's claim against Mourinho revolved primarily around a pitch-side incident, in which she ran on to the field to treat one of Chelsea's multi-million dollar stars, Eden Hazard. According to Dr. Carneiro, as she entered the field, Mourinho called her a highly sexist and derogatory name in Portuguese. In addition, after this match, Dr. Carneiro alleged that she was verbally abused by Mourinho in the team dressing room. Mourinho also reportedly demoted Dr. Carneiro, saying that he did not want her working with the first team.

It has been widely reported in the media that Dr. Carneiro rejected a proposed settlement from Chelsea in the region of 1.2 million pounds [2.2 million CAD], choosing instead to proceed to an employment tribunal hearing. Earlier today (June 7), Dr. Carneiro was scheduled to give evidence in the course of the hearing, which by all accounts was expected to be highly damaging both to Chelsea and Mourinho.

Minutes before taking the stand, however, the parties reached a settlement, thus ending the dispute. While the terms of the settlement remain confidential, Chelsea has now issued a public apology to Dr. Carneiro confirming that she was a "highly competent and professional sports doctor." Moreover, it is telling that the club chose to settle this, rather than allow Dr. Carneiro speak at her hearing.

This case offers a number of lessons to Ontario employees and employers alike:

1. As an employee, you are not required to accept a fundamental change to your job. Whether you are subject to harassment, demoted or given less pay, speak with an employment lawyer to ensure you protect yourself;
2. As an employer, ensure that you take appropriate steps to provide your staff with a workplace free from harassment. In Ontario, a failure to do so may potentially lead to significant liability; and
3. Ontario, unlike the United Kingdom, does not have a comprehensive employment tribunal. However, employees experiencing issues such as those raised in this case are protected through a framework of courts and administrative tribunals.