In the bustling landscape of Ontario’s job market, employees face a multitude of challenges. From meeting deadlines to juggling a work-life balance, the workplace can be a dynamic and demanding environment. Yet, one issue that often lurks beneath the surface is reprisal, which can significantly impact an individual’s professional journey regardless of the industry they work in.

Reprisal in the workplace is a topic that deserves attention as it touches upon the fundamental principles of fairness and safeguarding workers’ rights. Whether you’re a seasoned professional or just starting your career journey, unraveling the nuances of reprisal is crucial for ensuring and maintaining a healthy and productive work environment.

This blog post will explore the concept of reprisal and the potential implications for employees in Ontario, as well as considerations for employers when taking action against employees.

What Is Reprisal?

Under Ontario employment law, “reprisal” refers to a threat or negative action by an employer towards an employee because the employee followed, asserted, or attempted to assert their rights under particular legislation. Reprisal can occur when an employer intimidates, threatens, terminates and/or penalizes an employee.

Reprisal Under the Employment Standards Act

Section 74 of the Employment Standards Act states no employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee (or threaten to do so) simply because the employee:

• Asks the employer to comply with the Employment Standards Act;
• Inquires about their rights under the Employment Standards Act;
• Files a complaint with the Ministry under the Employment Standards Act;
• Exercises, or attempts to exercise, their rights under the Employment Standards Act; or
• Otherwise acts under one of the enumerated grounds under section 74(1)(a).

In a proceeding under the Employment Standards Act, the employer bears the onus of proof in establishing that they did not contravene a provision set out in section 74.

Examples of Acts of Reprisal by an Employer

Reprisal may take many forms and varies in actions and severity. The legislation provides a non-exhaustive list of actions and conduct which an employer is not allowed to engage in towards the employee, which includes, among other things:

• Penalizing, suspending, firing or terminating the employee;
• Threatening to penalize, suspend, terminate or fire the employee;
• Intimidating the employee;
• Threatening to discipline, or disciplining the employee;
• Creating a toxic or hostile work environment; or
• Engaging in coercive conduct against the employee, for example, through threats of reducing the employee’s hours or wages.

Reprisal Under the Ontario Human Rights Code

Ontario’s Human Rights Code also prohibits reprisals against employees in the workplace. Section 8 provides that every person has a right to claim and enforce their rights under the Human Rights Code and to institute and participate in proceedings under the Human Rights Code without reprisal or threat or reprisal for doing so.

In the matter of Noble v. York University, the Ontario Human Rights Tribunal stated:

“… [t]he prohibition against reprisal is an important provision in the Code. Its purpose is to ensure that individuals may ‘claim and enforce’ the fundamental rights embodied in the Code without fear or intimidation.”

As such, if an employee alleges discrimination in the workplace and the initial allegation is not substantiated, they will still be protected under section 8 of the Human Rights Code. The Noble case also set out the three-part test for determining whether a violation of section 8 has occurred, which requires the applicant (employee) to prove that:

1. There was an action taken, or threat made, to the Applicant;
2. The alleged action or threat is related to the Applicant having claimed or attempted to enforce a right under the Code; and
3. There was an intention on the part of the Respondent to retaliate for the claim or attempt to enforce said rights.

Reprisal Under the Occupational Health and Safety Act of Ontario

Section 50 of Ontario’s Occupational Health and Safety Act also prevents employers and companies from penalizing employees who assert their health and safety rights under the legislation. This includes when an employee asserts their right to refuse dangerous work.

What Ontario Workers Should Know About Reprisal

Employees who believe their employer has committed a reprisal against them may have several options for recourse. For example, an employee claiming reprisal under the Occupational Health and Safety Act may make a complaint to the Ontario Labour Relations Board. If a unionized worker believes their employer has carried out a reprisal against them, they may file a grievance through their union.

It is always important for an employee to speak with an experienced employment lawyer who can assess their circumstances and provide information and advice on the recommended course of action.

What Employers Should Know About Reprisal

Employers should be cautious when disciplining or threatening to discipline an employee who asserts or attempts to assert their rights under the Employment Standards Act. Even in cases where the employer may have other unrelated cause to do so, the employee may still argue that such action or threat constitutes a reprisal. Therefore, employers must ensure they carefully show that their conduct was otherwise justified and unrelated to the employee’s assertion of their statutory rights.

Employers can remain aware of their obligations and employees’ rights under the Employment Standards Act by working with a trusted employment lawyer. If an employee claims a reprisal has taken place, an employment lawyer can assist an employer to address and defend the claim.

Contact the Labour and Employment Lawyers at Grosman Gale Fletcher Hopkins LLP for Trusted Advice on Employee Reprisal

At Grosman Gale Fletcher Hopkins LLP, our experienced labour and employment lawyers regularly advise employers and employees on various employment and labour law disputes, including wrongful dismissal, human rights issues, and workplace conflict and harassment. If you believe a reprisal has been carried out against you, or you are facing a claim of reprisal by an employee, contact our office by phone at 416-364-9599 or online to schedule a confidential consultation.