REPRISALS FOR EMPLOYEES

Reprisal is when an employer penalizes you for asserting your legal rights or taking other lawful actions like:

• Reporting a health and safety complaint
• Filing a complaint about workplace harassment or sexual harassment
• Inquiring about, or trying to, enforce your employment standards; and
• Requesting an accommodation based on protected grounds

Reprisal can take various forms, including:

• Being scheduled for fewer or less preferable shifts
• Intimidation, e.g.: telling you that if you complain again there will be consequences
• Being dismissed
• Receiving a pay cut
• Coercion, e.g.: being threatened into not complying with an investigation; and
  Being passed over for promotions or opportunities.

You are protected from reprisal by several statutes. In Ontario, these are:

• The Human Rights Code
• The Occupational Health and Safety Act; and
• The Employment Standards Act

Across Canada, each jurisdiction has its own statutes, but the protections and frameworks are largely the same.

Employers are prohibited from penalizing you when you raise concerns, or complain about, issues relating to your human rights, workplace health and safety, and employment standards.

You are protected from reprisal in relation to issues regarding:

• human rights,
• workplace health and safety, and
• employment standards.

You are protected from complaining about such issues to your employer, and to outside agencies. For example, if you complain to the Ministry of Labour about a workplace concern, your employer cannot penalize you for that. Similarly, if a co-worker complains to the Ministry and there is an investigation, you cannot be penalized for cooperating with the investigation.

In sum, your right to a safe work environment, your right to be free from discrimination and harassment, and your minimum employment rights are protected, as your employer cannot prevent or penalize you from enforcing these rights without suffering costly consequences.

You can file a complaint with the corresponding administrative agency. For example, if the reprisal is connected to a human rights complaint, then the claim for reprisal would be governed by human rights legislation, such as the Ontario Human Rights Code. In Ontario, the statutes that prohibit reprisal each provide their own complaint process.

Each administrative agency will have its own process, but generally an application/complaint is in writing and would present your version of events, with all the facts you are relying on. In terms of filing the complaint, nowadays most complaints can be filed online, or physically via mail.

In contrast to traditional civil litigation, many reprisal complaints can be heard on a faster timeline. This can make a reprisal complaint a valuable recourse to employees who think they have suffered reprisal at the hands of their employers. It can also make employers be more wary about reprisal, as the consequences could be felt sooner than in a traditional lawsuit.

In a court action, reprisal can also form the basis of a bad faith claim. For instance, in a wrongful dismissal action, you could seek damages for wrongful dismissal and additional compensation if you can show that the reprisal constituted a breach of the employer’s duty to act in good faith in the manner of dismissal.

Generally, employers will be notified of the complaint against them, and will have an opportunity to respond. After filing their response, some processes involve mediation, which can be mandatory or voluntary.

If mediation does not resolve the matter, then the next step is usually a hearing, which is similar to a trial. Some hearings may involve witnesses, while some may only involve documentary evidence. The overall time it takes from filing a complaint to its resolution depends largely on the specific administrative body involved and its own procedures.

The remedies you can claim for reprisal are broad, and can vary by statute and jurisdiction, but they generally include:

• Reinstatement
• Compensation for lost wages on account of the reprisal
• Compensation for loss of future employment
• Punitive damages
• Non-monetary remedies such as changing workplace policies and procedures, and undergoing training to prevent future reprisal; and
• Correcting/issuing employee records/documents

We can help you understand your rights and obligations regarding reprisal. We can also represent you and enforce your rights. Remember, the information provided here is a simplified summary, and it’s essential to consult with legal professionals for specific advice related to your situation.