The year 2020 will undoubtedly be remembered as a particularly difficult one for the workplace. Not only has COVID-19 had a dramatic and transformative impact on the organization of the workplace, but issues of systemic racism and discrimination have also, rightfully, come to the forefront of social discourse.
Given the importance of the workplace to the organization of society, how employers manage issues of discrimination, safety and harassment will have a significant impact on our ability to achieve meaningful progress in these areas.
The confluence of these issues has revealed that many employers have not taken adequate steps to support a safe environment. In response, employees are raising concerns, only to be faced with negative consequences from their employers, including having their hours reduced or their employment terminated.
In addition to safety issues, employees have also approached employers about their concerns related to issues such as the handling of childcare obligations, instances of racism, as well as discrimination in the workplace.
While it is important that employees speak up for their rights, we understand the hesitation they may feel in doing so, particularly if they feel it could lead to them losing their job.
We have therefore compiled some key points regarding the law and protections available to employees who have (or are thinking of) raising concerns regarding harassment, discrimination, or safety issues in the workplace.
What is “reprisal”?
Reprisal occurs when an employer or manager disciplines, penalizes or threatens to penalize an employee as retaliation after an employee asserts or attempts to assert their rights in the workplace.
An act of reprisal can include, for example:
- Suspending or otherwise disciplining the employee
- Firing the employee
- Imposing a penalty on the employee (i.e. reducing their hours of work or their pay, or excluding them from meetings)
- Intimidating or coercing the employee
- Threatening any of the above actions
What legislation offers protection against reprisal?
A number of laws exist to protect employees. For example, in Ontario, protection can be found under the following pieces of legislation:
- the Occupational Health and Safety Act (“OHSA”);
- the Employment Standards Act, 2000 (the “ESA”); and
- the Human Rights Code of Ontario (the “Code”).
The Occupational Health and Safety Act
As employment lawyers, we have found that safety has been a primary concern for employees returning to the workplace during the COVID-19 pandemic. We have spoken with many clients about their entitlements to a safe workplace, the right to refuse unsafe work and the measures that can be taken to assert their rights in that respect.
Section 50(1) of the OHSA prohibits an employer from dismissing, threatening, disciplining, penalizing or intimidating an employee because the employee has sought to enforce protections under the OHSA.
In order to make a finding of reprisal under the OHSA, the Ontario Labour Relations Board (the “OLRB”) will look at whether there was retaliatory behaviour on the part of the employer that is related, at least in part, to the fact that the employee sought to enforce their rights under the OHSA. The OLRB will look at the context of any encounters or communications and assess the matter accordingly.
If punishment or a termination has taken place, the employer will have to demonstrate to the OLRB that the decision was not related to the employee’s decision to exercise their rights.
The Employment Standards Act
If an employee is seeking to enforce a right pursuant to the ESA, such as payment of vacation pay, overtime pay, holiday pay, or the provision of paystubs, the employee may reach out to the Ministry of Labour and file a complaint.
The ESA specifically protects an employee from punishment for bringing the matter to the attention of the Ministry of Labour.
Section 74 of the ESA specifically states that it is illegal for an employer or person acting behalf of an employer to dismiss or otherwise penalize an employee or to threaten to do so because the employee has:
- asked for compliance under the ESA,
- made an inquiry as to their rights under the Act,
- filed a complaint to the Ministry of Labour,
- exercised or attempted to exercise a right under the ESA, or
- given information to an employment standards officer.
To establish a breach of section 74, the Ministry of Labour will look at the following:
- Whether the employee engaged in an activity protected under the ESA, such as enforcing a right.
- Whether the employer was aware that the employee engaged in this activity or suspects that the employee engaged in that activity.
- Whether the employer penalized or threatened to penalize the employee.
- Whether there was an intention on the employer’s part to penalize the employee.
If the Ministry of Labour finds a violation, there is a range of protections available to the employee and penalties that could be applied against the employer.
The Human Rights Code of Ontario
Section 8 of the Code states that every person has a right to claim and enforce their right to be free from discrimination under the Code, and to refuse to violate the rights of another under the Code without reprisal.
To establish reprisal under the Code, an employee must demonstrate the following:
- An action was taken or a threat was made against them.
- The alleged action or threat was related to the employee making a claim or attempting to enforce a right under the Code.
- That there was an intention on the part of the employer to retaliate against the employee for the attempt to enforce their rights or filing the claim (if applicable).
When making a claim for reprisal under the Code, the claimant does not have to show that their rights were infringed; simply that they suffered a consequence for claiming they were. If the employee acted in good faith and legitimately believed there was a reason to act, the employer is not permitted to take action against the employee.
Further, it is important to note that if the discipline or dismissal has nothing to do with the employee’s complaint and the employer can demonstrate this, then the discipline or dismissal may be permitted to proceed.
Remedies for Reprisal
If an instance of reprisal is found to have taken place, there are several remedies available to the wronged employee.
For example, if the Ministry of Labour finds that an employee suffered from reprisal via termination, it can order that the employee be reinstated with payment of lost wages. If the employee has not been fired but has received a warning, the Ministry of Labour can order that the warning letter be removed from the employee’s file The Ministry of Labour may also order payment for any financial losses the employee may have suffered as a result of the employer’s misconduct (i.e. payment of wages for lost shifts etc.).
At the Human Rights Tribunal, similar remedies are available to the employee, along with the potential to recover general damages for the wrongful treatment.
If you have concerns that you may have been disciplined or had your employment wrongfully terminated because you tried to assert your rights in the workplace and are looking to obtain legal advice, contract Toronto employment and severance lawyers Sultan Lawyers at 416-214-5111 or here.
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