15 Dec The Repercussions of Retaliation in the Work Environment
An employer cannot intimidate, dismiss, or otherwise penalize an employee, or threaten to do so on the grounds that the employee does any of the following:
- Makes inquiries about their rights;
- Makes inquiries about the salary of other employees with a view to determining if the employer is providing equal pay for equal work
- Taking or planning to take pregnancy, sick, bereavement, family responsibility, declared emergency, family caregiver, family medical, critical illness, domestic or sexual violence, crime-related child disappearance or child death leave
- Files a complaint with the Ministry of Labour;
- Exercises or attempts to exercise a right under the Employment Standards Act;
- Gives information to an employment standards officer;
- Asks the employer to comply with the Employment Standards Act or regulations thereunder; and
- Testifies or is required to testify or otherwise participates or is going to participate in an employment standard proceeding. 1
If an employer punishes an employee, or suspends, terminates or threatens any of these actions, an employer can be ordered to reinstate the employee to their job and to compensate the employee for any losses incurred due to such violation and further order that any unpaid wages are reimbursed to the employee. Such actions are referred to as employer retaliation or reprisal.
There are a number of forums where the employee can seek remedy if he/she is a victim of employer retaliation including the Employment Standards Boards and/or the Ontario Courts. The Employment Standards Board provides employees with full access to a Tribunal that has broad authority to make binding and punitive orders against offending employers at low or no cost to the employee. Employees filing complaints to the Board are not required to have legal counsel.
Lawyers practicing in the area of employment law have long recognized that the decisions of the Employment Standards Board tend to favour employees. Admittedly, this conclusion is largely anecdotal but many professionals share the view of a perceived and actual bias against employers resulting in added obligations on the part of employers to prove that their actions did not constitute a reprisal. If an employer engaged in conduct for true and legitimate business purposes that the employee may have perceived as a reprisal, it is imperative that the employer maintains detailed notes, accounts, and records to provide real evidence in support of an employer’s defence that such action was legitimate and required.
An employee may be terminated or disciplined for many reasons, including poor work performance, insubordination, or poor attendance. However, if only one of the reasons provided by the employer can be tied to a reprisal, that is, if an employee was terminated because she failed to attend work without a good reason for 20 of the last 30 work days and also because she then advised the employer that she was pregnant and would be taking maternity leave, the employer™s action will be deemed a reprisal and the employer will face the consequences of that action.
When dealing with allegations of reprisal, the burden of proof falls on the shoulders of the employer. The employer must establish that it did not retaliate against an employee for exercising his or her statutory rights.
Employers are therefore cautioned to ensure they are well educated on the issue of retaliation and have policies and procedures firmly established to ensure that actions taken are not for the purpose of retaliation and cannot be construed as an act of reprisal.
If you have any questions, please feel to reach out to Amanda Maio directly at amaio@fijlaw.com or at 905 763 3770 x 209 for further information.
The material provided in this article is for general information purposes only. It is not intended to provide legal advice or opinions of any kind.
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Employment Standards Act, 2000, S.O. 2000, c. 41, s. 74(1);
Amanda Maio focuses primarily in the area of commercial litigation. Through the continued mentorship and guidance of the experienced litigation lawyers at FIJ, Amanda works with both large financial institutions and individual clients to support their litigation needs.