Getting punished at work for asserting one’s employee rights happens all too often at workplaces around the country.
We hear it often: “Can I be punished for asserting my rights?”
The answer: it depends on what right is being asserted and how you are asserting it.
In Ontario, employees are protected from punishment where they attempt to enforce their legal rights under the Employment Standards Act (“ESA”), the Ontario Human Rights Code (the “Code”), Canadian Human Rights Act or (“CHRA”), and the Occupational Health and Safety Act (“OHSA”).
So, while you may want to fight for the right for “Casual Fridays” at the office, that right is not covered under legislation.
And while you may want to assert your right to be free from harassment at work, this does not mean you can harass your colleagues in return.
What Type of Reprisal is Covered Under Legislation?
- ESA Reprisal: Under section 74 of the ESA, employers and agents acting on their behalf are prohibited from intimidating, penalizing, dismissing or threatening an employee for acts including but not limited to enquiring about their ESA rights, requesting their employer comply with the ESA, of filing a complaint under the ESA.
- Code Reprisal: Reprisal is addressed under section 8 of the Code, whereby every person has a right to claim and enforce their human rights, to participate in human rights proceedings, and to refuse to infringe the human rights on another person, without reprisal or threat of reprisal.
Reprisal is also found under section 7(3) of the Code, which deals with reprisal and threats of reprisal in sexual solicitation cases.
3) CHRA Retaliation: Under Section 14.1 of the CHRA, it is a discriminatory practice for a person against whom a complaint has been filed under Part III (Discriminatory Practices and General Provisions), or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim.
4) OHSA Reprisal: Section 50 of the OHSA provides protection against reprisal for those attempting to enforce their right under the OHSA, such as refusing to work in unsafe conditions, cooperating with Ministry of Labour investigations, complying with orders, or providing testimony at a related legal proceeding.
Importantly, an employer does not have to actually punish an employee to meet the test of reprisal. It is sufficient if an employer threatens punishment in connection with the employee’s attempt to enforce their legal right.
Employers need to be careful about taking steps which appear to punish an employee when an employee is attempting to assert a legal right. While the employee may have an unrelated and justified reason in disciplining the employee, the timeframe and evidence may suggest reprisal.
Where an employee has made a reprisal claim or application, it is up to the employer to demonstrate, on a balance of probabilities, that it did not reprise against the employee, and to properly justify any disciplinary actions taken against the employee. Should an employee commit some minor infraction months prior to making a complaint under the ESA but is only punished for that infraction after the complaint was made, the employer may be found to have reprised against the employee.
What Does It Mean For You?
Whether you are an employee and you believe you have been subjected to reprisal, or whether you are an employer and you want to take preventative or responsive steps to ensure the steps you take are proper, you will want to consider how to protect yourself.
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