March 24, 2017

The majority of employees in this province are subject to employment laws such as the Employment Standards Act, 2000 (the “ESA”), the Ontario Human Rights Code (the “Code”), and the Occupational Health and Safety Act (the “OHSA”) which have enshrined various rights of employees, and obligations of employers.  Some of the employment law rights and duties which repeatedly come up in our cases involve discrimination on the part of employers, the right to work in a safe environment; workplace violence and harassment cases, including sexual harassment, the right to be paid on a timely basis, for statutory holidays, overtime and vacation pay; and if terminated, to be paid in accordance with the statutory minimums.

How to Enforce your Rights in a Nutshell

If an employee has had one of these rights infringed, the law is on their side to help and protect them without the fear of reprisal which we will get into more detail later.  Generally speaking with any employment issue, the first course of action is to speak with your immediate manager, or in some cases the company’s Human Resources Department, if available, to see if the situation can be rectified.  If the employee is dealing with a health and safety issue, the employee would get in touch with the Joint Health and Safety Committee, if one exists, or the safety representative, or the employer.  If no satisfactory resolution is reached, then depending on which employment law is at issue, further action is necessary.

a) The ESA

If an employee is seeking to enforce a right pursuant to the ESA, such as payment of overtime, or termination or severance pay in the case of a dismissal, the employee always has the option of going to the Ministry of Labour and filing a complaint.  An Employment Standards Officer attempts to resolve the dispute, and if necessary, may make an order. If the employee or employer does not agree with an order, the Ontario Labour Relations Board (OLRB) can review the matter.  The other avenue or recourse available to an employee, who has not started a complaint, is to commence a civil action in court.

b) The Code

If an employee is dealing for instance with discrimination or a failure of an employer to accommodate, the employee can make an application directly to the Human Rights Tribunal for relief.  The Tribunal has a plethora of remedies available to them depending on the infringement.  The process is an employee friendly one, and the Tribunal promotes early resolution of disputes through conference calls, mediations and summary hearings.  If no application is made to the Tribunal, the employee may have the option of seeking a civil remedy for breach of the Code, if it is part of a larger civil claim such as a wrongful dismissal action.  An employee cannot base a civil action strictly on the breach of the Code.

c) The OHSA

If an employee is refusing to work because of unsafe conditions, or is concerned about a contravention of the OHSA, the employee has an obligation to report this concern to his or her supervisor or employer.  The employer’s joint health and safety committee should get involved, or at least a representative or the employer itself to see how the situation should be handled and whether the Ministry of Labour needs to be notified.  If the Ministry does get involved, the OHSA provides for inspectors to investigate, and if necessary, take appropriate actions to deal with infringements and violations of the OHSA.

Reprisal – The Statutory Bases for Protection from Reprisals

Understandably, employees may feel scared, anxious or apprehensive about relying on the law to enforce their rights fearing their employer will act out against them.  Do not be afraid! These laws recognize that an employee can take action without fear of reprisal.  Generally speaking, reprisal by an employer means the employer has taken or has threatened to take some measure, usually negative in nature, such as termination, demotion against an employee who has relied on one of these statutes to enforce their legal rights.  Below is a summary of the reprisal laws available to affected employees.

a) ESA

Section 74 of the ESA generally provides that an employer cannot intimidate, fire or take negative action against an employee because an employee asks questions of, seeks compliance of, or makes a complaint to the OLRB under this ESA.  To establish a breach of s. 74, one must prove that the employee engaged in a protected activity under the ESA; the employer was aware or suspects that the employee engaged in the protected activity; the employer penalized or threatened to penalize the employee; and there was intention on the part of the employer to penalize (Mediclean Inc. v. Mendoza, CanLII 2010 13018 (ON LRB)).

The onus of proof is on the employer to show that it did not violate the ESA. The statutory remedy for reprisal under the ESA is to file a complaint to the Ministry of Labour and have the matter dealt with initially by an Employment Standards Officer, and if necessary, on review by the OLRB.  Generally speaking, where a reprisal is made out, the OLRB can award various forms of compensation such as damages for direct wage loss (awarded from the date of termination to the date the applicant secures alternate employment), damages for loss of opportunity of continued employment, and damages for emotional pain and suffering PLUS reinstatement if requested.

b) The Code

Under section 8 of the Code, every person has a right to claim and enforce their rights under the Code, to start and participate in proceedings under the Code, and to refuse to violate the right of another under the Code without reprisal.  The remedy for reprisal under the Code is for the employee to bring an application to the Tribunal.  To establish reprisal the employee need not show that there rights were actually infringed, but rather:  an action was taken against, or a threat was made to, the claimant; the alleged action or threat was related to the claimant having claimed, or attempting to enforce a Code right; and there was an intention on the part of the respondent to retaliate for the claim or the attempt to enforce the right. (Noble v. York University, 2010 HRTO 878).

When an application is made, the Tribunal can order the payment of monetary compensation for loss arising from the discrimination, compensation for injury to dignity, feelings and self-respect, restitution, and anything else it consider appropriate.  Some examples that fall into the latter category is reinstatement, training, and implementation or revision of workplace policies and practices.   If an employee elects to seek redress through the civil courts, whether or not they specially plead s. 46.1 of the Code (which gives the Courts to provide remedies for Code violations), any concurrent or subsequent application to the Tribunal will likely be dismissed (or stayed) until the civil action is determined.

c) The OHSA

Under Section 50 (1) of the OHSA, no employer shall dismiss, threaten, discipline, penalize or intimidate a worker because the worker has complied with or sought enforcement of the OHSA.  A non-unionized employee, who believes his employer has taken reprisal action can make an application to the OLRB, or have an inspector refer it on consent of the worker to the OLRB.  The test for a reprisal under the OHSA  is whether the reprisal is in part related to the fact that the employee sought to enforce his or her rights. The part, need only be a small part.  The onus will be on the employer to provide compelling and exact evidence to support a decision to terminate not related to the employee exercising his or her rights under the OHSA.  If the OLRB finds a reprisal, it may order to remove or change any penalty the employer impose; provide for reinstatement and/or provide compensation.

Take Away

The law extensively provides relief to employees who have been victims of reprisal by the hands of their employers.  For employees, the point to take away is don’t be afraid to assert your rights because you think your employer is going to fire you, or discipline you.  The law of reprisal is on your side, and a plethora of remedies are available to you.  If you are an employer, our advice is to be cognizant of any potential allegation of reprisal in any termination or discipline situation involving an employee who has taken action to enforce their rights under one of these statues.

By Christine Krueger