Simple answer: Yes.
“My work used to be fine, but then I got a new manager…” is a situation that we as employment lawyers encounter so often that it is practically a trope. An employee may have worked for years or even decades in the same role without issue, only to have the company assign a new manager who quickly destroys the existing relationship.
It may be because the manager is seeking to ‘prove themselves’ by having some metric increase, is attempting to assert petty dominance, or simply because the new manager should not be managing people at all. Whatever the reason, the result is a new manager that is harassing employees and creating a toxic work environment for everyone.
Many employees will feel stuck in this toxic situation but do not take any action out of fear of reprisal or not knowing how to proceed.
This is a mistake.
Workplace violence and harassment, including a toxic work environment, are health and safety concerns under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). By not making a written complaint, the employee is only protecting the company and the harassers, and allowing further issues to occur.
No Magic Words are Needed
In the workplace, possible health and safety issues range from making a cup of coffee to the dangers of nuclear waste. If it is a workplace issue that has the potential to harm an employee, it is covered. For example, the OHSA prohibits employers from requiring employees to wear heels unless the employee is a performer in movies, TV shows, and other forms of entertainment.
Due to this wide range of possible health and safety issues, no specific words are required to be used to make a health and safety complaint.
Your Employer Must Prove They Did Not Commit a Reprisal
Most employees know they cannot be terminated in reprisal for making a workplace harassment complaint or asking about their rights, but assume it is a difficult process where they have to prove wrongdoing by their employer.
In fact, it is the opposite. If an employee makes a health and safety complaint and then is punished, it is the employer that is required to prove its decision was not a reprisal.
It does not matter if the termination was also for other legitimate reasons, including misconduct, restructuring, or poor performance. If the decision to punish the employee was in any way motivated by the employee’s complaint, it’s a reprisal.
It Does Not Matter If Your Complaint Is Valid
The fear for many employees in making a formal, written complaint is simple – “What if I am wrong?” Employees will second guess themselves or convince themselves that the treatment isn’t so bad out of fear of making an unfound complaint. Employers will often prey on this fear, launching counter-investigations into employees who complain about workplace harassment, often while they “investigate” the employee’s complaints.
A complaint does not have to be valid. In fact, under the OHSA, a worker is mandatorily required to report any health and safety issues or hazards.
You Can Get Your Job Back and More
The fear of reprisal is losing a steady income, benefits, and financial issues. Employers know this, so they will choose to terminate the employee for cause to ensure they do not receive notice or severance and cannot collect Employment Insurance.
The law recognizes the extreme harm caused by reprisal and that this behaviour should be punished. If an employee is terminated in reprisal for making a health and safety complaint, the award’s purpose is to change the past. The employee is entitled to be given their job back as if the termination never occurred, with associated rights, length of service, and other benefits, including back pay for all the months they were unemployed. They may also be entitled to general damages (tax-free) for the ordeal they went through.
No Complaint = No Reprisal = No Damages
An employment claim is against the company for failing to ensure a safe work environment. If the company does not know about the harassment or discrimination, it cannot be found to have failed in its duties or have punished the employee for the complaint.
Employers know this, so they will intentionally try to make sure it is as hard as possible for an employee to prove the company was aware of the issues. By ensuring that the complaint is only discussed verbally, often in meetings where management and/or HR representatives outnumber the employee, the employer will produce a situation where the only evidence will be testimony of both sides and written documents created by the employer.
Recordings Are Bad Evidence – But Probably Not for the Reasons You Think
Many employees will try to protect themselves by openly or secretly recording the meetings with the employer, believing this evidence will be a slam dunk.
- Recordings are not always allowed as evidence. Courts and Tribunals may not allow the admission of a recording as evidence for various reasons.
- Recordings are often poor quality. Most recordings are made using another device, such as a cell phone hidden in a pocket. There may be many issues with both the process of recording and the recording itself. The sound may be muffled and distorted, or the device may have failed to record the entire conversation if it ran out of memory.
- The act of recording in itself may be grounds for termination without notice. A nurse who records a meeting may violate patient rights and privacy laws.
Seek Legal Advice as Soon as Possible
Health and Safety reprisals are a complex area of law that can often be confusing and anxiety-inducing. Making a complaint, no matter how valid, is scary.
The best way to calm those fears is to get specific legal advice from a lawyer you can trust. For reprisal applications, Unionized employees can choose to have their own lawyer represent them, rather than the Union.
The lawyers at De Bousquet PC pride ourselves on our client-first approach, getting you the best result with the least stress. If you have workplace harassment, discrimination, or health and safety issues, call us today.