Reprisal Under Ontario Employment Law

Reprisal is a form of workplace retaliation that occurs when an employee suffers adverse consequences for exercising their rights or making protected disclosures. It is unlawful behaviour under various areas of Ontario employment law and can have significant consequences for both employees and employers.

What is Reprisal?

Under the law, a reprisal can take many forms by an employer that seeks to penalize or punish an employee, including:

Termination of employment
Demotion or transfer
Reduction in pay or benefits
Negative changes to working hours or conditions
Threats, intimidation, or harassment
Negative and unwarranted performance reviews

Reprisal can occur in various contexts, such as an employer’s retaliatory response to:

Whistleblowing: When an employee reports illegal or unethical activities.
Union activity: When an employee exercises their union-related rights, such as participating in a vote to form a workplace union.
Human rights complaints: When an employee files a human rights complaint.
Occupational health and safety complaints: When an employee raises concerns about workplace safety issues, such as workplace harassment complaint.

Understanding the Scope of Reprisal

Reprisal can take many forms, and it’s essential to recognize the various ways in which it can manifest:

Direct Retaliation: Explicitly harming an employee for exercising their rights, such as firing them or demoting them.
Indirect Retaliation: Creating a hostile work environment or making it difficult for the employee to continue their employment, which can lead to an employee bringing a constructive dismissal claim against the employer.
Pattern of Retaliation: A series of smaller incidents that cumulatively create a discriminatory or hostile work environment.

Various Protections Against Reprisal in Ontario Employment Law

Ontario law provides employees with several protections against reprisal. These protections are found in various statutes, including:

(i) Ontario Employment Standards Act, 2000

The Employment Standards Act prohibits employers from taking actions of reprisal against employees for exercising their rights under the ESA, such as:

Filing a complaint under the Employment Standards Act, such as for unpaid wages or termination pay
Refusing to work overtime without overtime pay
Exercising their rights related to pregnancy leave or parental leave

(ii) Human Rights Code

The Human Rights Code prohibits employers from taking actions of reprisal against employees for exercising their human rights, such as:

Filing a human rights complaint alleging discrimination by an employer, including unequal treatment based on an employee’s age, disability, ethnicity, family caregiving obligations, race, or religion
Refusing to engage in acts of discrimination against other people
Refusing to provide reasonable accommodation measures, such as an employee’s disability or family caregiving obligations

(iii) Occupational Health and Safety Act

The Occupational Health and Safety Act prohibits employers from taking reprisal against employees for exercising their rights under the legislation, such as:

Filing a complaint under the legislation, such as workplace harassment to the Ministry of Labour
Participating in health and safety committees
Refusing to work in unsafe or hazardous work conditions

Important Lessons for Employers and Employees

Employers:

Develop clear workplace policies: Implement clear policies prohibiting reprisal and outlining the consequences for engaging in such behaviour, which can be included in a Code of Conduct or Workplace Harassment policies.
Provide training: Educate managers and employees about the importance of preventing reprisal and the consequences of violating these policies.
Investigate complaints promptly: Take all complaints of reprisal seriously and conduct thorough and independent investigations.
Take corrective action: If a complaint of reprisal is substantiated, take appropriate corrective action, including disciplinary measures.

Employees:

Understand your rights: Be aware of your rights under Ontario employment law and how they are protected.
Document everything: Keep records of any incidents of reprisal, including dates, times, and witnesses.
Report reprisal: If you believe you are being subjected to reprisal, report it to your employer, a union representative, or a government agency.
Seek legal advice: Consult with an employment lawyer for guidance on your rights and options.

Defenses Against Reprisal Claims

Employers may raise certain defenses to reprisal claims, such as:

Legitimate, non-retaliatory reason: If proven based on the facts of each case, an employer may be able to argue that the adverse action was taken for a legitimate business reason unrelated to the employee’s protected activity.
Just cause: If the employer can prove that the employee was terminated for just cause, this can be a defense against a reprisal claim if the termination was absolutely not a form of retaliation.

Remedies for Reprisal

If an employee is successful in proving reprisal, they may be entitled to various remedies, including:

Reinstatement: while rare, an employee may be reinstated to their previous position (particularly in a successful discrimination claim).
Compensation: The employee may be awarded damages for lost wages, benefits, and other losses in a successful wrongful dismissal claim or constructive dismissal claim. The issue of an employee facing reprisal by an employer often arises during severance package reviews or severance package negotiations with the help of an experienced employment lawyer.
Punitive damages: In severe cases, the court may award punitive damages to punish the employer and deter similar behavior.
Injunctions: The court may order the employer to stop engaging in reprisal.

By understanding the laws and regulations related to reprisal, both employers and employees can help to create a fair and equitable workplace.

Book a Consultation with an Employment Lawyer in Toronto

At Bune Law, we understand and are familiar the complexities of workplace law and are committed to helping both employers and employees navigate these challenges. Whether you are an employer or employee dealing with employment contracts, workplace disputes like a wrongful dismissal or constructive dismissal, or simply need guidance on your rights and obligations for a severance package review and negotiation, our experienced employment lawyer is here to assist you.

Book a confidential consultation with our Toronto employment law firm to protect your legal rights to understand your options and protect your rights.

Why Choose Bune Law When You Need an Ontario Employment Lawyer?

Experience in all areas of workplace law, including wrongful dismissal claims, constructive dismissal claims, severance package reviews, severance package negotiations, discrimination and human rights disputes, and employment contract reviews.
Proven track record of successfully resolving workplace disputes through negotiation, mediation, and employment litigation.
Compassionate and personalized approach to each case, ensuring tailored solutions that meet your specific needs.

If you need a Toronto employment lawyer who is committed to delivering strong results and proactive solutions, please contact Bune Law online or by phone today at 647-822-5492.