reprisal, employee rights, employment lawyer

Employee Rights When an Employer Has Taken Reprisal Action

Ontario Employee rights are protected under the Ontario Employment Standards Act, 2000 (ESA) and the Ontario Human Rights Code, but reprisal may occur against an employee for exercising these rights. Reprisal occurs when an employer intimidates, dismisses, or penalizes an employee because they assert their workplace rights. ‘Penalize’ is broad in meaning, encompassing discipline that unfairly disadvantages the employee. Reprisal can be subtle, such as comments made during a performance review, or more blatant, such as a termination without cause. Examples of reprisal include instances where an employee asserts their legal rights, and an employer engages in conduct not limited to:

·         Suspending or threatening to suspend an employee;

·         Imposing penalties;

·         Disciplining or threatening to discipline an employee;

·         Terminating or threatening to terminate an employee; and

·         Reducing or threatening to reduce hours and/or pay.

 

Employee Rights and Reprisal under the Employment Standards Act:

Reprisal is prohibited under the ESA. Section 74(1) of the ESA contains a non-exhaustive list of activities in which an employer is prohibited from penalizing or threatening to penalize employees,  such as

a)       Ask the employer to comply with the Employment Standards Act, 2000 (ESA) and its regulations;

b)      Asking questions about rights under the ESA;

c)       Filing a complaint under the ESA;

d)      Exercising or trying to exercise a right under the ESA;

e)      Giving information to an employment standards officer;

f)        Asking about the rate of pay paid to another employee to determine if an employer is providing equal pay for equal work;

g)       Disclosing their rate of pay to another employee to determine if an employer is providing equal pay for equal work;

h)      Taking, planning on taking, being eligible or becoming eligible for a pregnancy, sick, bereavement, family responsibility, declared emergency, family caregiver, family medical, critical illness, organ donor, reservist, domestic or sexual violence, crime-related child disappearance or child death leave;

i)        Being subject to a garnishment order (i.e., a court order to have a certain amount deducted from wages to satisfy a debt);

j)        Participating in a proceeding under the ESA; and/or

k)       Participating in a proceeding under section 4 of the Retail Business Holidays Act (regarding tourism exemptions that allow retail businesses to open on holidays).

 

Remedies available to employees in response to reprisal may include:

·         Reinstating an employee; and/or

·         Compensating an employee for losses incurred as a result of reprisal.

 

Ontario case law has established four elements which, if proven, demonstrate that an employer has engaged in acts of reprisal against an employee. Mediclean Inc v Mendoza holds that a  breach under section 74(1) of the ESA will arise if:

1.       Employee performed one of the protected activities listed above;

2.       The employer knew that the employee engaged in the protected activity;

3.       Employer penalized or threatened to penalize the employee; and

4.       The employer intended to take disciplinary action against the employee for engaging in the protected activity.

 

When an employee claims that their employer has taken negative actions against them that constitute reprisal, the burden falls on the employer to show that they have not engaged in acts of reprisal.

 

Reprisals and Employee Rights under the Ontario Human Rights Code

Section 8 of the Ontario Human Rights Code (the Code) also prohibits reprisals in an employment and labour context.

To make out reprisal under the Code, the employee does not need to show that their rights have been infringed. Rather, in their claim, the employee need only demonstrate that they experience the following:

1.       employer is taking or threatening to take reprimand action against the employee;

2.       action or threat of action results from the employee asserting their rights under the Code; and

3.       The employer intends their actions and/or threat of action to be in response to the employee asserting their rights under the Code.

All three factors must be found to prove reprisal has or is occurring under the Code.

 

What to do if you have been reprised and your employee rights have been breached?

i.                    Complaints under the ESA:

If you believe you have been reprised for engaging in any of the above activities listed under section 74(1) of the ESA, you can file a complaint with the Ontario Labour Relations Board (OLRB). You would be required to complete a form A-53 or C-26. You can contact the Ontario Ministry of Labour if you need assistance with the forms or information about the filing process. However, the Ministry of Labour cannot represent you or advise you as to whether your claim, in fact, constitutes reprisal. In these cases, you can consult an employment and labour lawyer who can provide legal advice catered to your unique situation.

Alternatively, you can pursue a civil action in court instead of filing a complaint with the OLRB.

ii.                   Complaints under the Code:

As previously discussed, section 8 of the Code prohibits reprisal and may offer remedies. To file a complaint under the Code, a Form 1 Application must be completed and submitted to the Human Rights Tribunal of Ontario (HRTO). A free guide is available online if you wish to commence a Human Rights Application on your own, or you can consult an employment and labour lawyer who can assist you with preparing your Application to the HRTO.

 

Advice for employers accused of reprisal

Employers should carefully consider disciplinary actions taken towards employees and whether those actions are in connection with any conduct and/or complaints made by the employee in relation to their employee rights. If the disciplinary actions are retaliatory in nature, they could constitute a reprisal, and the employee could be justified in seeking damages.

If you have been served with a claim of reprisal, you may want to seek legal advice from a lawyer specializing in employment and labour law, depending on the forum in which the claim is brought. When an employer is served with a form A-53 or C-26 from the OLRB, a form A-54 should be submitted to the OLRB in response. In the event that an employer is served with a Form 1 Application from the HRTO, a Form 2 Response should be submitted to the HRTO. An employment and labour lawyer can assist employers in preparing and filing their responding materials with both institutions.

 

Conclusion

In Ontario, multiple statutory protections are available to protect employee rights regarding reprisals. Both the ESA and the Code prohibit employer retaliation against employees for asserting their rights in the workplace. Remedies available to employees could include reinstatement of their position and damages for lost wages.

An employment and labour lawyer can help you determine if you have been reprised, file claims, negotiate with an employer or employee, or help you defend against a claim of reprisal.

 

Contact Us

If you are an employee or employer in need of assistance with reprisal. Our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we would be happy to assist.

For  small or medium-sized companies looking for full-service support, check out our Chief Legal Officer (CLO) program page for our strategic solutions.

 

Related Topics

Can Employees Discuss Their Salaries?

Human Rights In The Workplace

Can Unionized Employees Start Human Rights Complaints?