When people lose their jobs, one of the first questions they ask is “can I get my job back?” Generally, the answer is no. There are some exceptions, however. One is for unionized employees, who can be reinstated in specific circumstances. Another is for employees that have been harassed or discriminated against contrary to human rights legislation. And a third, which may surprise employers and employees alike, is found in the Occupational Health and Safety Act (“OHSA”), which provides for reinstatement where there has been a “reprisal” contrary to the OHSA.
What is a reprisal?
OHSA provides protection to workers from being punished for attempting to enforce their rights under certain provisions of the Act. Employees are specifically protected in any of the following scenarios:
- Acting in compliance with the Act or the Regulations
- Acting in compliance with an order made under the Act or the Regulations
- Seeking enforcement of the Act or the Regulations
- Giving evidence in an inquest or proceeding in respect of the Act or the Regulations
Employers or their representatives are prohibited from doing any of the following because an employee has taken one of the above courses of action:
- Dismiss the worker
- Threaten to dismiss the worker
- Discipline the worker
- Suspend the worker
- Threaten to discipline or suspend the worker
- Impose any penalty upon the worker
- Intimidate the worker
- Coerce the worker
The Board has found that “seeking enforcement of the Act” includes an employee making a complaint of harassment. Moreover, since the Act protects an employee seeking enforcement of the Act, the issue of whether the employee has experienced harassment is not relevant if the complaint itself is the reason for reprisal.
Jurisdiction and Procedure
An employee who believes their employer has committed reprisal against them can file a complaint with the Ontario Labour Relations Board, which is the main adjudicative body for applications under the Ontario Labour Relations Act. Pursuant to OHSA, the Board’s rules on practice and procedure govern, with necessary modifications, when it is dealing with reprisal complaints. These practices and procedures are outlined in the Ontario Labour Relations Act.
In applying its rules, the Board has found that its power to order reinstatement, which is fairly normal in the labour relations context, is equally applicable in the non-unionized context under reprisal circumstances.
Employers who are concerned about their obligations pursuant to the Occupational Health and Safety Act, who do not have a workplace violence and harassment policy, or who have received a harassment complaint are encouraged to contact us should they require advice or assistance in ensuring they are meeting their obligations and in investigating any complaints. Employees who believe their employer has committed a reprisal against them are equally encouraged to contact us for advice regarding their options in this type of situation.
by Cody Yorke
Author - Extraordinary Damages in Canadian Employment Law
