If you are experiencing harassment in the workplace, there might be a few worries holding you back from making a complaint to your employer. Will your employer punish you for making a complaint? Will they reduce your hours or stop considering you for a promotion? Will they fire you?
Consider seeking advice from an employment lawyer before you make a complaint. Together you can strategize on how to best communicate your concerns to your employer. You can also ensure that if your employer tries to retaliate later, you will be prepared.
The Occupational Health and Safety Act (“OHSA”) doesn’t only protect employees from physical harm, it is also in place to help promote workplaces that are free from harassment. One way this is done is by prohibiting reprisals under s.50 of the OHSA.
What is a reprisal?
A reprisal happens when an employer punishes you, fires you, threatens to fire you, or intimidates you for following the OHSA. There are workplace activities that are protected by s.50 of the OHSA:
- You are following the OHSA.
- You are seeking enforcement of the OHSA. This includes filing a complaint with the Ministry of Labour or by complaining to your employer.
- You give evidence to help enforce the OHSA. For example, if you testify against your employer in a proceeding.
So, if you make a complaint to your employer about the harassment you are experiencing, and they fire you for it, this is an unlawful reprisal.
A reprisal is an attempt by your employer to intimidate you, make you feel powerless, and to make you regret complaining. Seeking legal advice right away is one of the steps you can take to level the playing field.
Reprisals are also prohibited under the Employment Standards Act (“ESA”). The ESA prohibits employers from penalizing employees in any way for a number of activities, including:
- Asking another employee about their rate of pay;
- Taking or planning to take a leave (parental, sick, etc.);
- Asking questions about your rights under the ESA;
- Trying to exercise a right under the ESA;
- Filing a complaint under the ESA.
Your employer is prohibited from punishing, or threatening to punish, you for exercising your rights as an employee.
Test for Reprisal: Timing is Important
The test for determining whether a situation qualifies as a reprisal was outlined in a case called Sinkovits v City of Toronto. In order to establish a breach of s.50 of the OHSA, these three elements must exist:
- The employee was allegedly complying with the OHSA, attempting to enforce the OHSA, or testifying in a proceeding under the OHSA. (In essence, the employee was engaging in one of the protected activities.)
- An alleged reprisal. (Was there a punishment?)
- There must be some basis for drawing a reasonable link between points (1) and (2). There needs to be some connection between your complaint and the retaliation from your employer.
This also means timing is important in establishing a reprisal. For example, if you make a harassment complaint to your employer and 1-year later you are fired, it’s going to be much harder to establish a reprisal than if you made a complaint and are fired the next week.
Retaliation Can be Sneaky
How do you know if there is a connection between your complaint and the punishment? How are you supposed to prove it?
It may not always be obvious that your employer is penalizing you for making a complaint. For example, you make a harassment complaint to your employer and then over the next few weeks you are suddenly under a lot more scrutiny by your supervisor or there are complaints about your job performance for the first time. This can be not only confusing, but incredibly frustrating if you do not know how to react.
If you are uncertain about whether your situation is an unlawful reprisal or not, consider having a consultation with an employment lawyer to get their opinion. Our lawyers have years of experience in employment law and have seen all types of reprisal scenarios.
The Burden of proof is on Your Employer
In reprisal cases, the burden is on the employer to show that they did not penalize the employee for exercising their rights under the OHSA. For example, if your employer terminates your employment, they would have to show that their reasons for firing you had nothing to do with any complaints you made. This is a high bar for them to meet as the law is designed to protect employees.
If you suspect that your termination is the result of a complaint you made to your employer, you can take action. Book a consultation with one of the lawyers at De Bousquet PC to get a better understanding of the situation, and how you can best respond.