Reprisal or Wrongful Dismissal?

Employers are prohibited from penalizing or threatening to penalize employees in any way for asserting or asking about their rights under employment legislation. An example of reprisal is when an employee complains to the Ministry of Labour that their employer is not paying overtime, and, in response, the employee is reassigned to a different position. The reassignment may constitute reprisal against the employee in retaliation to her complaint and this is not allowed in Canadian law. Read on to learn more about reprisal and when it can result in wrongful dismissal.

What is Reprisal?

A reprisal is an action or threat of action by an employer against an employee who has exercised their rights. Such action taken by the employer may inevitably lead to a wrongful dismissal and prove to be an important factor in it. An employer may not penalize or threaten to do so for workers who ask their employer about their rights or to follow the law. An employer also cannot take action for an employee filing a complaint with the Ministry of Labour or the Canada Industrial Relations Board or otherwise exercising their rights. Workers are also protected from reprisal when exercising their right to work free of discrimination under the Ontario Human Rights Code and their right to health and safety in their workplace under the Ontario Health and Safety Act.

Workers should be aware that reprisal may be quite discrete but can include a wide range of retaliation by the employer. This could include a negative work evaluation, salary decreases, demotion, hostile attitude, intimidation, coercion and/or threat by an employer. It can also arise over time through a series of interactions. Essentially, an employer who is restricting an employee’s ability to exercise their rights in any way could be committing a reprisal, even if the employee is not being explicitly punished.

The case of Chan v. Tai Pan Vacations Inc [2009] H.R.T.O No. 273 provides an illustrative example. Ms. Chan initially launched a human rights complaint for discrimination for the way she was treated while pregnant and the lack of accommodation given to her. While the complaint was in process, Tai Pan withheld financial bonuses, failed to provide multiple salary increases, did not allow her to attend multiple special events that were relevant to her job, and ultimately terminated her employment three weeks after the settlement of the original complaint. The Human Rights Tribunal of Ontario found that the behaviour constituted reprisal in violation of the Ontario Human Rights Code. Damages of $57,000 were awarded to the employee for the discrimination, salary lost during pregnancy, and her subjection to reprisal.

The Human Rights Tribunal of Ontario dictated three elements which must be shown for reprisal. These are:

  1. Action or a threat to has been taken;
  2. The action or threat is related to an original complaint or enforcement of right;
  3. There was an intention to retaliate for the complaint or enforcement;

Once these have been shown, it falls on the Defendant to show that there was a reasonable explanation for the behaviour.

An employment lawyer at Monkhouse Law will be able to analyze your claim in relation to this test and assist in putting forth your best position.

What is Wrongful Dismissal?

Wrongful dismissal, or wrongful termination, occurs when an employee is not given proper notice or payment in lieu of notice after the employer terminates the employment. It does not necessarily require wrongdoing or misconduct by the employer. There are three types of wrongful dismissal: termination without cause, termination with just cause, and constructive dismissal. Though a without cause termination is completely legal, it does require the employer to provide sufficient notice or pay in lieu of notice. When terminated with cause, the former employee does not have a right to severance pay. However, the standard for proving cause is extremely high and only applies to serious misconduct on the part of the employee. Finally, constructive dismissal is when an employer makes a fundamental change to your working conditions which would amount to a termination.

How Does Reprisal Differ From Wrongful Dismissal?

In some cases, an act of reprisal may result in a wrongful dismissal by an employer. A single act can be both a reprisal and wrongful dismissal, for instance, if a worker is terminated immediately after complaining about safety protocols or discrimination. In other instances, reprisal may be a series of acts that ultimately lead to an individual quitting, constituting a claim for constructive dismissal. Importantly, a worker can have a claim for reprisal even where it did not end the employment relationship.

An employment lawyer at Monkhouse Law can assist in making a claim for both wrongful dismissal, reprisal, or both. By reviewing the factors with you and referring to the relevant laws in Canada, we can help determine whether a legal remedy may be available to you.

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