The remedy of reprisal is intended to compensate a person who has been punished for doing the right thing. It is a form of “whistleblower” protection.
This remedy is found in the Human Rights Code. In essence, should the employer take retaliatory action against an employee for threatening or bringing a human rights complaint, a case can be made for reprisal. This relief also is extended to a person who declares support for such a complaint and in turn, is subject to adverse treatment.
Good Faith Requirement
The most important aspect to a reprisal case is that the underlying complaint need not succeed for success in the reprisal claim to follow. For example, should Mary assert a sexual harassment case against a co-employee and the company were to terminate her employment due, even in part, to this complaint, her reprisal claim against the company does not mandate success in the sexual harassment allegation. Mary’s threatened case must only be made in good faith, which has resulted in the retaliatory action.
A second important consequence is that the employer is usually not responsible for a sexual harassment case. It is, however, directly liable for a reprisal case.
The human rights remedy for reprisal may include lost wages to the date of the hearing, damages for injured feelings and reinstatement. Clearly, it is a very powerful remedy.
Apart from the above remedy, should an employer terminate a person due to declared support for a colleague contemplating a form of lawsuit or human rights case against the employer, a case will be made out for “aggravated damages” or emotional suffering due to such a violation of the implied duty of good faith and fair dealing. The same remedy will be available to the person making the complaint directly. If Mary threatens to file a human rights complaint against the employer, for example, and she is terminated as a result, she may also sue in civil court for the same aggravated damages. Significant sums have recently been awarded by civil courts for such claims.
Employers’ Take Away
If you are the victim of retaliatory action taken against you for “doing the right thing”, get advice before you act. There may well be many options of legal remedy available to you. Each one has advantages and disadvantages. You need a qualified lawyer to advise you of your rights and remedies.
For advice on this issue from either side, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise both employers and employees on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.
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