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Significant Damages Owed For Reprisals: This Weeks’ Blog Post Covers A Growing Problem In The Workplace
A reprisal, in the employment law context, is when an employer has taken action against an employee who has exercised their rights.
Typically, the employer will implement measures to affect the employee’s income negatively, or, more commonly, threaten to terminate the employee under false allegations of cause.
Under the Employment Standards Act, 2000, reprisals are an offence. Section 74 reads as follows:
74. (1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,
(a) because the employee,
(i) asks the employer to comply with this Act and the regulations,
(ii) makes inquiries about his or her rights under this Act,
(iii) files a complaint with the Ministry under this Act,
(iv) exercises or attempts to exercise a right under this Act,
(v) gives information to an employment standards officer,
(vi) testifies or is required to testify or otherwise participates or is going to participate in a proceeding under this Act,
(vii) participates in proceedings respecting a by-law or proposed by-law under section 4 of the Retail Business Holidays Act,
(viii) is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV; or
(b) because the employer is or may be required, because of a court order or garnishment, to pay to a third party an amount owing by the employer to the employee.
The courts have found that significant damages are warranted wherein an act of reprisal has occurred. The onus is on the employer to prove that a violation of s.74 has not occurred, a principle recognized in the case of Mucollari v. Il Gabbiano Ristorante  O.H.R.T.D. No. 393.
In the case of Moffatt v. Kinark Child and Family Services  O.H.R.B.I.D. No. 15, an employee was discriminated against due to his sexual orientation and a report regarding suspected child abuse was made by his manager. The employee had also brought a human rights issue to his employer’s attention prior to his termination regarding his treatment in the workplace. The court found that the employer did not adequately investigate the rumour and report, and that the employer’s actions in this regard, and terminating him after the human rights issues were raised constituted reprisal. Damages of $36,000.00 were awarded for the employee’s discrimination, subjection to reprisal, and, on a punitive basis, the right to be free from reprisal.
In the more recent case of Morgan v. Herman Miller Canada Inc.  O.H.R.T.D. No. 650, an employee who had brought the issue of racial discrimination against him to his employer’s attention and was subsequently terminated was awarded $70,799.70.
These cases represent a spectrum from which damages for reprisal can be approximated. Damages in reprisal situations are typically accompanied by general damages for the corresponding violation(s) of the Ontario Human Rights Code, R.S.O. 1990, c.19.
The principle, however, is clear: employers are not entitled to terminate employees on the basis that they asserted their right(s). Employment Standards exist for a reason and, should an employer not abide by these standards, employees should be able to voice their concerns and, where applicable, go to the appropriate authority, without fear of losing their job.
Advice for Employers
Given the costs and damages to your reputation which accompany a reprisal claim, it is best to evaluate termination decisions, particularly where a complaint has previously been made by the employee.
If you are unsure as to whether termination is the appropriate response to such a situation, or any situation within your workplace, it is best to consult with an Employment Lawyer to minimize risk and to proceed in the best manner possible.
Advice for Employees
If you were terminated shortly after exercising a statutory right or bringing discrimination or other claims to the attention of your employer, you may have a claim for reprisal. Pursuant to the case of Noble v. York University 2010 HRTO 878, the following factors are required to establish a complaint of reprisal:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
An employment lawyer can review the factors surrounding your termination and the applicable law, and determine whether a legal remedy may be available to you.