THUNDER BAY - Tbaytel vice president of operations and administration, John Barch, who announced his resignation earlier this year, has filed a civil suit against the company, alleging constructive dismissal and breach of contract for what he calls reprisal for raising a workplace harassment complaint involving the president and CEO and a separate whistleblowing complaint last spring.
Barch filed the suit on March 10, 2022 in the Ontario Superior Court of Justice and he is seeking $393,918 in damages for wrongful dismissal, as well as $100,000 in damages for Tbaytel’s breach of duty to perform contractual obligations, and $50,000 in aggravated or punitive damages.
Additional damages for vacation wages, loss of benefits, and job search and retraining expenses are to be determined prior to trial.
Barch was employed with Tbaytel for 32 years and served as the vice president of operations and administration for the past seven years. On Jan. 7, 2022, he resigned from the company, which will become effective as of April 29, 2022.
According to the statement of claim, Barch says he met with Tbaytel president and CEO Dan Topatigh on Dec. 2, 2021, where he was informed of a decision to restructure his role, resulting in reduced responsibilities and duties, including the human resources portfolio being given to an individual who once reported to him.
“There was no discussion with John prior to this decision having been made by the Defendant, and he did not agree or consent to the reduction in his role, duties and responsibilities,” the statement of claim reads.
Barch asked what he could do to ‘prevent the demotion,’ but was told the Tbaytel board unanimously voted on the decision and there was nothing he could do to change it.
After sending a message to Topatigh saying he did not consent to an ‘erosion’ of his duties and responsibilities, he received a response saying the human resources portfolio only accounts for four per cent of his responsibilities, which he calls a mischaracterization, claiming it actually accounts for 50 per cent.
On Dec. 23, 2021, several emails were sent to the executive management team and Tbaytel employees regarding the restructuring and naming the new vice president of human resources.
“Also in these emails it was announced that the effective date of the restructuring was effective January 1, 2022, less than two weeks away, which caused John significant humiliation and was extremely demeaning in the circumstances,” the statement of claim reads.
Barch claims all previous restructuring of his employment with Tbaytel was discussed with him prior, had his consent, and did not involve a vote from the board.
“John pleads that the Defendant’s conduct in regard to the substantial and fundamental change and reduction in his role, duties and responsibilities, amounted to a fundamental breach of the employment agreement, thereby amounting to constructive dismissal of his employment,” the statement of claim reads.
The reduction in his duties and the responsibilities given to a ‘subordinate’ was intended, Barch alleges, to ‘humiliate and demean him’ as a form of reprisal after he made a formal workplace harassment complaint to the Tbaytel board regarding the actions of Topatigh, as well as a separate whistleblowing complaint.
The complaints were made in May 2021 and investigated by a third-party on behalf of Tbaytel. During the investigation, Barch said he raised concerns with the investigator about future reprisals by Topatigh or Tbaytel for bringing the complaints forward.
“John pleads that he was reassured by the third-party investigator that the Defendant’s internal policies would insulate him from reprisals as a result of bringing forth the complaints,” the statement of facts reads.
It goes on to say that six months following the receipt of the third-party investigator’s report into the complaints, the emails were sent on Dec. 23, 2021 regarding the reduction of Barch’s responsibilities and duties, which the statement of claim alleges was “reprisal for John having brought forth the workplace harassment and whistleblower complaints in the Spring of 2021, contrary to the internal policies of the Defendant.”
Due to his reduction in duties and responsibilities and the change in reporting structure of a subordinate, Barch alleges the work environment became ‘poisoned’ and ‘toxic’ and he could no longer continue in his role with the company, resulting in his constructive dismissal, or involuntarily leaving due to Tbaytel’s breach of the terms of his employment.
The statement of claim argues that Barch’s executive management position and his 32-year tenure with the company entitles him to 24 months of notice of termination or pay in lieu. He is also seeking compensation for out-of-pocket expenses he has incurred and expects to continue to incur resulting from Tbaytel’s conduct.
Barch is also seeking aggravated and punitive damages for what the statement of claim calls Tbaytel’s ‘callous disregard and complete lack of care’ for Barch.
“As outlined above, John’s constructive dismissal arose, in whole or in part, as a result of the Defendant’s reprisal for John bringing forth a workplace harassment and whistleblower complaints, and the subsequent reduction in role, duties, responsibilities and reporting structure that arose following such,” the statement of claim reads.
Tbaytel filed a notice of intent to defend on March 16, 2022 but is seeking an extension of the deadline to file a statement of defense. The matter will return to court in June 2022.
None of the allegations in the statement of claim have been proven in court.
