Dec 18

Reprisals: An Update on How the Law Identifies and Addresses Reprisals Within the Workplace

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Reprisals: An Update on How the Law Identifies and Addresses Reprisals Within the Workplace

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It is well-accepted law that reprisals (action taken by an individual or company to punish an individual for asserting his or her legal rights) are a violation of law. In fact, they are a violation of two pieces of legislation: section 8 of the Ontario Human Rights Code R.S.O. 1990, c.19 (the “Code”), and section 74.1 of the Employment Standards Act, 2000 (the “ESA”).

Our firm’s prior blog post on this legal issue (http://www.monkhouselaw.com/employment-and-reprisal/) focused on the decisions in Mucollari v. Il Gabbiano Ristorante [2013] O.H.R.T.D. No. 393, Morgan v. Herman Miller Canada Inc. [2013] O.H.R.T.D. No. 650 and Moffatt v. Kinark Child and Family Services [1999] O.H.R.B.I.D. No. 15 to demonstrate what Tribunals were awarding for violations of section 8 of the Code, and outlined the test for reprisal, as articulated by the Human Rights Tribunal of Ontario in Morgan v. Herman Miller Canada Inc. [2013] O.H.R.T.D. No. 650.

Recent Developments

Despite the common law’s clear stance that reprisal will not be tolerated, reprisal case law has continued to generate.
In the recent decision of Partridge v. Botony Dental Corporation, 2015 ONSC 343 (CanLII), the Plaintiff received significant damages for her employer’s acts of reprisal against her. The reprisal occurred following the Plaintiff’s maternity leave, wherein she was demoted from her position pre-maternity leave as an Office Manager. The Plaintiff was told that the position was no longer available and that she would be returning from leave to her former position as a Dental Hygenist, a transfer which involved a significant pay cut and less-than favourable hours for a new mother. When the Plaintiff refused to accept the demotion, she was terminated.

At trial, Justice Healey found that the Defendant had not only breached the ESA by failing to return the Plaintiff to an Office Manager position following her leave, but also by reprising against her. Justice Healey further found that the Defendant had discriminated against the Plaintiff on the basis of family status. As a result, the Plaintiff was awarded twelve (12) months’ pay in lieu of notice and $20,000.00 for the Defendant’s violations of the Code.
The amount was upheld on appeal (2015 ONCA 836 (CanLII)), and the Plaintiff (at that time Respondent to the appeal) was awarded $12,500.00 in costs for the appeal.

Another recent case which involved reprisal was Melanie Lamoureux v. JYSK Linen N Furniture Inc., 2015 CanLII 78257 (ON LRB), wherein the Applicant was terminated following her return from maternity leave. She was advised while in the process of returning from leave that the office which she had worked at was closing. She had been promised another opportunity with the company; however, it was eventually revealed that the opportunity was a demotion, which the Applicant expressed she was not interested in. The Respondent’s response to this was to terminate the Applicant, following which the Applicant made a complaint to Ministry, which was denied, and following this, an application for review to the Ontario Labour Relations Board.
When the matter proceeded to a hearing, the Board found that section 74(1) of the ESA had been violated and that emotional distress had occurred as a result of the reprisal. The Board awarded damages for lost wages from the date of termination to the hearing date and the value of Employment Insurance benefits for her second pregnancy, which resulted in another leave after the termination from JYSK. The Board also awarded $5,000.00 to the Applicant as compensation for emotional distress.

Conclusions

While the above decisions represent reprisal on the basis of a specific factor, they are demonstrative of the fact that reprisals are punishable in different manners, and that reprisal is still a live issue which the law will not tolerate.

If you believe that you have been demoted or punished, or if you have been terminated for asserting your rights as an employee, contact Monkhouse Law today for a free consultation.