Is doing a media interview about poor working conditions a health and safety issue? Is your position being eliminated due to restructuring while you are on leave a violation of the law?
Most people would confidently say no. They would also be completely wrong.
You are on your last month of maternity leave, and your employer contacted you to let you know that due to restructuring, unfortunately, your position has been eliminated. Congratulations, you have suffered a reprisal contrary to the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”). and should contact a lawyer immediately.
You are working at a warehouse, and they have run out of gloves. You verbally complain to your manager about this happening. A few weeks later, your hours have been reduced due to a slowdown in business. Congratulations, you have suffered a reprisal contrary to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1(the “OHSA”) and should contact a lawyer immediately.
What is a Reprisal?
A Reprisal is when an employer threatens, intimidates, penalizes or coerces an employee due to them engaging in a protected activity. There are four main parts to a reprisal.
Protected Activity
A Protected Activity sounds complex, but it is, in fact, extremely simple, and you probably do at least five every day. For example, telling your manager it is time for your break is a protected activity.
Almost all employees know that they have protections under the OHSA relating to workplace health and safety. There is an assumption that the OHSA only covers physical issues, such as providing PPE for working with dangerous chemicals. In fact, the OHSA covers every aspect of employment, from washroom breaks to bullying and harassment.
Similarly, there are numerous rights under the ESA that most employees do not know they have. For example, having your wages garnished to pay child support is a protected activity.
There are no magic words or forms required. Asking questions about your rights and making complaints both count as a protected activity. A media interview about working conditions is also engaging in a protected activity. It is extremely broad and covers everything relating to the scope of the ESA and OHSA, as well as their regulations.
Threaten, Intimidate, Penalize or Coerce
Pretty much any change to employment that is negative for the employee meets the requirement for a reprisal. This can be as large as termination or as small as giving them fewer shifts.
Connection
The protected activity and negative outcome are required to be connected. This sounds difficult to show, but is, in fact, almost always trivial. Two events that happen close to each other in time are assumed to be connected.
A surprising number of employers will also helpfully tell the employee the events are linked.
Due To
The fact is that an employer is never going to admit it committed a reprisal, and it would be nearly impossible to prove it did. Its actions will always be justified by something else.
This does not matter. The law recognizes the imbalance and imposes a “reverse onus” on the employer. This means that it is assumed the employer committed a reprisal, and it must prove it did not.
However, providing an alternative reason is not enough. The employer is not required to prove that it reduced your hours for a different reason than you complained. The employer is required to prove that its decision to reduce your hours was not in any way influenced by the fact you complained. This is the taint test.
What Does This Matter?
If it sounds like it would be near impossible for your employer to prove they did not commit a reprisal, you are correct. It is.
This is by design. The rights under the OHSA and ESA are so important that the law treats them as sacred. As held by the OLRB, a reprisal is not only an assault on the very integrity of these acts, it is an attempt to destabilize the constitutional order and the rule of law itself.[1]
Correspondingly, the Ontario Labour Relations Board is given expansive powers to fix the breach. Essentially, it can rewrite time. It can order your employer to rehire you, order your employer to pay back pay for all the time you were off, and order that it is as if your termination never happened.
If you do not get your job back, you get compensated for this, as well as your dismissal. The damages for your termination are effectively paid twice.
I’m Unionized though, None of This Applies for Me Right?
Wrong. Unlike almost everything else, where you are required to go through the grievance process, a unionized employee can hire their own lawyer and bring a reprisal claim under the OHSA.
I Work for a Bank/Airline/Railway, this Does Not Matter for Me, Right?
The Canada Labour Code, R.S.C., 1985, c. L-2 also prohibits reprisals. If you are a federally regulated employee, such as a bank or airline employee, unionized or not, you can not only hire your own lawyer to bring a reprisal claim, the Canada Industrial Relations Board has the authority to order your employer to pay costs to cover a portion of your legal fees.
Why Contact De Bousquet?
Reprisals are inherently stressful and can undermine your trust in the laws that are meant to protect you. At De Bousquet, we understand the pain and frustration that a reprisal causes, and are here to help. We treat every client as a person, not a file number, and are focused on getting you the best holistic outcome. We pride ourselves on the immense trust our clients feel safe placing in us and taking on the stress of the case so you do not need to worry.
Contact us today.
[1] Fiorildo Tenace v Sense Appeal Brands Inc. (Sense Appeal Coffee Roasters), 2015 CanLII 49516 (ON LRB) at para 21.