When an employee raises concerns about rights under the Employment Standards Act, the workplace response matters. A recent Ontario Labour Relations Board decision, 1766375 Ontario Inc. o/a Sunset Grill v. Cassandra Laing, considered whether a restaurant employer terminated a server because she filed a holiday pay complaint with the Ministry of Labour, Immigration, Training and Skills Development.

The employer argued that the termination was unrelated to the employee’s complaint. Instead, it said the employee was dismissed for dishonesty, disobedience, and insubordination following a scheduling dispute. The employee argued that the termination was connected to her effort to enforce her statutory rights.

The Labour Board dismissed the employer’s application for review and upheld the compensation order. The decision is a useful reminder for Ontario employers that timing, documentation, communication, and consistency can all become important in a reprisal analysis.

The Holiday Pay Complaint and Termination

The employee worked as a server at a restaurant. She was hired in November 2023 and later filed a holiday pay complaint with the Ministry in July 2024. The employer learned of the complaint around October 18, 2024.

The employee’s holiday pay complaint was resolved after the employer made a voluntary payment. However, the dispute did not end there. Shortly after the employer learned of the complaint, the employee’s schedule became a point of conflict.

The employee was terminated on November 5, 2024. The Employment Standards Officer later found that the employer had committed a reprisal under section 74 of the ESA and issued an order for compensation. The employer applied to the Board to have the order set aside.

Employer Alleged Termination for Cause

The employer maintained that the termination was not retaliatory. It argued that the employee was terminated for being dishonest and insubordinate during a text message exchange about her schedule.

The employer said the employee had falsely claimed that she always worked five shifts per week, that she was promised five shifts, that shifts were being taken away, and that she had been threatened because of the Ministry complaint. The employer also argued that scheduling changes were caused by business needs, lower sales, and the hiring of a new server.

The employer relied on job postings, schedules, and text messages. It said the job posting did not guarantee a set number of shifts. It also said the schedules showed that the employee had worked both four and five shifts per week before and after the complaint.

Employee Alleged Termination Was Reprisal for ESA Complaint

The employee said the employer’s attitude changed after learning about the holiday pay complaint. She testified that she had asked informally about holiday pay before filing a formal Ministry complaint.

According to the employee, shortly after the employer learned of the complaint, one of the owners discussed the complaint with her near the end of a shift. She testified that she was told to drop the complaint or she would slowly lose shifts.

The employee later noticed that she was not scheduled for her usual Friday night shift. She texted the manager to ask why. The exchange became tense, with the employer repeatedly accusing her of dishonesty. The employee denied lying and said she did not appreciate being called dishonest. The termination letter was sent the same day.

The ESA Reprisal Framework

Section 74 of the ESA prohibits an employer from intimidating, dismissing, penalizing, or threatening to do so because an employee asks about rights under the ESA, asks an employer to comply with the ESA, files a complaint with the Ministry, gives information to an Employment Standards Officer, or exercises or attempts to exercise ESA rights.

In ESA reprisal cases, the burden of proof is placed on the employer. This means the employer must show that it did not contravene the reprisal provision.

The Board explained that a reprisal analysis generally looks at three elements:

1. Whether the employee sought to enforce rights under the legislation;
2. Whether the employee experienced an adverse consequence;
3. Whether there was a connection between the exercise of rights and the adverse consequence.

Why Timing Mattered

There was no real dispute that the employee filed a holiday pay complaint. There was also no real dispute that termination was an adverse consequence. The main issue was whether the termination was connected to the complaint.

The timing was significant. The employer learned of the holiday pay complaint around October 18, 2024. The employee was terminated roughly two weeks later.

The Board noted that timing alone does not automatically prove reprisal. However, when an adverse employment consequence closely follows the exercise of statutory rights, the employer has a heavy burden to show that there was no connection between the two events.

The Scheduling Evidence Was Not Enough

The employer placed significant emphasis on scheduling. It argued that the employee had no guaranteed right to five shifts and that the schedules showed she sometimes worked four shifts.

The Board accepted some of this evidence. It found that the employee did not always work five shifts per week. It also accepted that restaurants may need scheduling flexibility and that employers may make scheduling decisions based on operational needs.

However, the Board found that the Friday night shift was important. The schedules showed that the employee worked Friday nights almost all the time. Even when she worked four shifts instead of five, she often still worked the Friday night shift. The Board found that the employee’s concern about losing that shift was not unreasonable.

A Missing Explanation Created Problems

The Board found that the employer did not provide a persuasive explanation for removing the employee from her usual Friday night shift.

The employer said scheduling changes were due to business needs, reduced sales, and the hiring of a new employee. However, the Board found that the explanation shifted. In the text messages, the employer referred to sales and flexibility. At the hearing, the employer emphasized the hiring of a new server.

The Board also noted that the employer did not provide objective evidence to support the claim that sales were down. It also did not provide sufficient evidence to show why this particular scheduling change affected the employee in the way it did.

The Alleged Threat Was Important

A central factual issue was whether the employee had been threatened after filing the holiday pay complaint. The employee testified that she was told to drop the complaint, or she would slowly lose shifts.

The employer denied that any threat was made. However, the person alleged to have made the threat did not testify. The employer instead challenged the employee’s account through cross-examination.

The Board found the employee’s evidence about the threat to be clear, consistent, and credible. It also found that the employee’s account was consistent with the later text messages. In the absence of evidence from the person alleged to have made the threat, the Board found it more likely than not that the discussion occurred and that the employee was left with the impression that consequences would follow if she did not drop the complaint.

Text Messages Can Become Key Evidence

The text messages played a major role in the decision. The employer argued that they showed dishonesty and insubordination. The employee argued that she was defending herself after being accused of lying and after becoming concerned that her schedule had changed because of the Ministry complaint.

The Board found that the employee had overstated some things, including saying she always worked five shifts. However, it did not accept that these statements were deliberate falsehoods meant to support a claim. The Board characterized them as exaggerations or overstatements made during a workplace dispute.

The Board also rejected the idea that the employee’s text messages justified termination. It found that the employee asked reasonable questions about her schedule and was quickly met with accusations of dishonesty and unrelated performance concerns.

Performance Concerns Raised Too Late

The employer also referred to performance issues in the text exchange, including concerns about food running and customer complaints. However, it was agreed that no performance issues had been formally raised with the employee before termination.

The Board found that there was no objective documentary or witness evidence to support the performance concerns. This created further difficulty for the employer’s position.

For employers, the decision highlights the importance of addressing performance issues when they arise, documenting them clearly, and avoiding reliance on unaddressed concerns only after an employee has exercised statutory rights.

Labour Bound Found Termination Connected to ESA Complaint

The Board concluded that the employer had not met its burden. It found that the termination was at least partly connected to the employee’s ESA complaint.

The Board emphasized that the employee’s complaint did not need to be the only reason for termination. It was enough if the decision was tainted by an improper motive connected to the employee exercising her ESA rights.

The Board dismissed the employer’s application for review and upheld the order for compensation. The order included amounts for emotional pain and suffering, loss of reasonable expectation of continued employment, and administrative costs.

Grosman Gale Fletcher Hopkins LLP: Toronto Employment & Labour Lawyers Providing Trusted Advice in ESA Reprisal Issues

For employers in Toronto and across Ontario, ESA complaints, employee discipline, workplace investigations, scheduling disputes, and termination decisions can raise complex employment and labour law issues.

Grosman Gale Fletcher Hopkins LLP advises both employers and employees on Employment Standards Act compliance issues, reprisal risks, termination planning, workplace policies, employment agreements, and representation before the Ontario Labour Relations Board. Contact us online or call (416) 364-9599 to discuss your Employment Standards issue with a skilled employment and labour lawyer.