A reprisal in employment law in Ontario occurs when the employer intimidates, threatens and/or terminates or penalizes their employee because the employee asserted or attempted to assert their rights under Ontario’s Employment Standards act, 2000, in the workplace. Reprisals can take many forms and encompass a wide range of differing behaviours and actions that may also range in intensity. For example, some common ways in which employers have engaged in acts of reprisal against an employee are threatening to fire or terminate the employee, firing or terminating the employee, threatening to suspend the employee, suspending the employee, penalizing the employee, threatening to penalize the employee, disciplining the employee, threatening to discipline the employee, intimidating the employee, or engaging in coercive or bullying conduct as against the employee. Common bullying or coercive conduct used against an employee would be such actions as making negative comments, or making insulting statements, threatening to reduce the employee’s pay or wages or reduce the employee’s hours of work or changing the workplace location.
Ontario’s Employment Standards Act, 2000 (“ESA”) sets out a non-exhaustive list of actions of the employee that an employer is not allowed to engage in including penalizing or threatening to penalize the employee. This list is contained in section 74 of the ESA. For example, no employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so because the employee,
- asks the employer to comply with the ESA and its regulations;
- makes inquiries about his or her rights under the ESA;
- files a complaint with the Ministry under the ESA;
- exercises or attempts to exercise a right under the ESA;
- gives information to an employment standards officer;
- makes inquiries about the rate paid to another employee for the purpose of determining or assisting another person in determining whether an employer is complying with Part XII (Equal Pay for Equal Work) of the ESA;
- discloses the employee’s rate of pay to another employee for the purpose of determining or assisting another person in determining whether an employer is complying with Part XII (Equal Pay for Equal Work) of the ESA;
- testifies or is required to testify or otherwise participates or is going to participate in a proceeding under the ESA;
- participates in proceedings respecting a by-law or proposed by-law under section 4 of the Retail Business Holidays Act;
- is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV of the ESA; or
- because the employer is or may be required, because of a court order or garnishment, to pay to a third party an amount owing by the employer to the employee.
The onus is on the employer to show that they have not breached s. 74 of the ESA.
Ontario’s Human Rights Code, 1990 (“Code”) also prohibits reprisals against employees by employers in the workplace. Specifically, section 8 of the Code states that every person has a right to claim and enforce their rights under the Code, to institute and participate in proceedings under the Code and to refuse to infringe a right of another person under the Code, without reprisal or threat of reprisal for so doing. To remind our readers, the Code makes it unlawful to discriminate in the employment law context (and other contexts) against individuals based on an individual’s age, race, gender, disability, creed, etc.
What should you do if you feel that your employer has committed a reprisal against you?
There are several actions that an employee can take if they have been victims of a reprisal against them by their employer. We would stress that it is important to contact an employment lawyer, if possible, even if it is just for a consultation. Employment lawyers are able to provide employees and employers with valuable information with respect to what an employee or an employer should do and what actions are possible to take if the employee has been a victim of a reprisal from their employer or has accused an employer of reprisal.
What about Employers?
Employers need to be very cautious in disciplining or threatening any employee when that employee has recently asserted or attempted to assert their rights under the ESA. This is even if the employer may have another cause to do so not related to the employee asserting their rights which may justify their actions. The bottom line is that if the employer does indeed take disciplinary action against the employee who has recently asserted their rights, then the employee could argue that those actions are retaliatory, and therefore, a reprisal. Employers need to take specific actions in order to be able to show their actions were not related to the employee asserting their rights but that, in fact, the employer’s actions were justified given the context that they were taken.
We would also stress that it is important to contact an employment lawyer to assist the employer. An employment lawyer can provide valuable information to the employer about when, who and to what extent to discipline an employee given all the facts of the matter and the context in which it has taken place. Further, the employment lawyer may also assist employers when the employee has actually taken steps to have their reprisal claim addressed, such as if the employee has brought a legal proceeding against the employer for retaliatory conduct in court.