Workplace reprisal occurs when an employer punishes, threatens, intimidates or otherwise retaliates against an employee for exercising a legal workplace right. An employee may experience reprisal after asking to be paid properly, reporting unsafe working conditions, requesting a disability accommodation, raising concerns about discrimination or making a workplace complaint.
Reprisal is sometimes called workplace retaliation. It does not have to involve termination. A demotion, reduction in hours, threat, negative performance review or other penalty may potentially amount to reprisal when it is connected to an employee asserting a protected right.
Ontario employees are protected from workplace reprisal under several laws, including the Employment Standards Act, 2000, the Ontario Human Rights Code and the Occupational Health and Safety Act.
What Does Reprisal Mean?
In employment law, reprisal means an action or threat intended to punish an employee for claiming, enforcing or asking about a workplace right.
For example, an employee may raise concerns about unpaid overtime. If the employer responds by reducing the employee’s shifts, threatening termination or unfairly disciplining the employee, those actions may constitute reprisal.
A reprisal claim generally involves a connection between:
- A right protected by employment, human rights or health and safety legislation;
- An employee claiming, questioning, reporting or attempting to enforce that right; and
- An employer imposing or threatening a workplace penalty because the employee exercised that right.
The precise legal test and available remedies depend on which law applies to the situation.
What Are Examples of Reprisal in the Workplace?
Workplace reprisal can be obvious or subtle. Examples may include:
- Terminating an employee after they file an employment standards complaint;
- Cutting an employee’s hours after they ask about unpaid overtime or vacation pay;
- Demoting an employee after they return from a protected leave;
- Giving an unjustified negative performance review after an employee reports discrimination;
- Threatening an employee who raises a workplace health and safety concern;
- Excluding an employee from meetings, assignments or advancement opportunities after they request accommodation;
- Changing an employee’s duties or schedule as punishment for making a complaint;
- Harassing or intimidating an employee who participates in an investigation;
- Disciplining an employee for asking the employer to comply with employment legislation; or
- Pressuring an employee to withdraw a complaint or abandon a legal right.
Not every negative workplace decision is reprisal. Employers can still manage performance, impose legitimate discipline and make reasonable business decisions. The issue is whether the negative treatment was connected to the employee exercising a legally protected right.
Is Reprisal the Same as Workplace Retaliation?
Reprisal and workplace retaliation generally describe the same type of conduct: adverse treatment in response to an employee asserting a right or making a protected complaint.
Ontario employment legislation commonly uses the word reprisal. Employees may be more likely to describe the same conduct as retaliation, employer retaliation, retaliatory discipline or retaliatory firing.
Regardless of the term used, the important question is whether the employer punished or threatened the employee because they exercised a protected workplace right.
Reprisal Under the Employment Standards Act
Section 74 of Ontario’s Employment Standards Act, 2000 prohibits an employer, or a person acting on behalf of an employer, from intimidating, dismissing or otherwise penalizing an employee, or threatening to do so, because the employee exercised certain rights under the legislation.
Protected actions may include:
- Asking an employer to comply with the ESA;
- Asking questions about rights under the ESA;
- Exercising or attempting to exercise an ESA right;
- Filing an employment standards claim;
- Giving information to an employment standards officer;
- Participating in an ESA proceeding; or
- Taking or being eligible to take a protected leave.
ESA rights address matters such as minimum wage, overtime pay, vacation pay, hours of work, public holidays, pregnancy and parental leave, family-related leaves, termination pay and severance pay.
For example, an employer may violate the ESA’s reprisal provisions if it dismisses an employee because the employee asked to receive overtime pay required by the legislation.
Reprisal Under the Ontario Human Rights Code
Section 8 of the Ontario Human Rights Code protects people from reprisal or threats of reprisal for claiming or enforcing a right under the Code, participating in a human rights proceeding or refusing to infringe another person’s human rights.
Human rights reprisal may occur after an employee:
- Reports workplace discrimination or harassment;
- Requests accommodation based on disability, religion, family status or another protected ground;
- Files an application with the Human Rights Tribunal of Ontario;
- Participates as a witness in a human rights matter;
- Rejects sexual advances or reports sexual harassment; or
- Supports another employee who is asserting a human right.
An employee does not necessarily need to prove that the original discrimination complaint would have succeeded for subsequent retaliation to constitute a separate human rights violation.
Learn more about human rights in the workplace and the protections available to Ontario employees.
Reprisal for Raising Health and Safety Concerns
Section 50 of Ontario’s Occupational Health and Safety Act prohibits an employer from dismissing, disciplining, suspending, threatening or otherwise penalizing a worker because the worker exercised a right under the legislation.
A health and safety reprisal may arise after a worker:
- Reports a workplace hazard;
- Asks the employer to follow health and safety requirements;
- Provides information to an inspector;
- Participates in a workplace health and safety process;
- Exercises a legally protected right to refuse unsafe work; or
- Seeks enforcement of the OHSA.
Workers who believe they experienced a health and safety reprisal may be able to file a complaint with the Ontario Labour Relations Board. The appropriate process will depend on the worker’s circumstances, including whether the workplace is unionized.
Can an Employer Fire You for Making a Complaint?
An employer is generally permitted to terminate a non-unionized employee without cause, provided the termination is not prohibited by law and the employee receives the notice or compensation they are legally entitled to receive.
However, an employer cannot lawfully terminate an employee because the employee exercised a protected statutory or human right. A firing connected to an employment standards complaint, human rights concern, protected leave or health and safety report may amount to reprisal.
The employee may also have a wrongful dismissal claim if the employer failed to provide sufficient notice of termination or compensation in place of notice.
What Is the Difference Between Reprisal and Wrongful Dismissal?
Reprisal and wrongful dismissal are related but legally distinct concepts.
- Reprisal concerns the employer’s reason for imposing a penalty. The employee alleges that they were punished because they exercised a protected right.
- Wrongful dismissal generally concerns whether a terminated employee received the notice of termination or compensation required by their contract, employment standards legislation or common law.
An employee can experience reprisal without losing their job. For example, an employer might cut the employee’s hours or deny opportunities after the employee makes a complaint.
A termination can also constitute both reprisal and wrongful dismissal. This may occur when an employer fires an employee for asserting a protected right and also fails to provide adequate notice or compensation.
Read more about the distinction in Reprisal or Wrongful Dismissal? Understanding the Difference.
Can Workplace Reprisal Lead to Constructive Dismissal?
In some cases, serious or ongoing retaliation may contribute to a constructive dismissal.
Constructive dismissal may occur when an employer makes a substantial unilateral change to an essential term of employment or engages in conduct showing that it no longer intends to be bound by the employment relationship.
Examples could include a major demotion, a significant reduction in compensation or a pattern of hostile treatment that makes continued employment objectively intolerable. However, not every unpleasant workplace experience or isolated disagreement will meet the legal threshold.
Employees should obtain legal advice before resigning in response to suspected reprisal. Resigning too quickly or without properly documenting the circumstances could affect a potential claim.
How Can an Employee Prove Reprisal?
Evidence in a workplace reprisal claim may include:
- Emails, text messages or internal workplace messages;
- Copies of complaints submitted to the employer or a government agency;
- The timing between the protected action and the employer’s response;
- Performance reviews from before and after the complaint;
- Records showing changes to hours, duties, compensation or responsibilities;
- Disciplinary letters or termination documents;
- Names of witnesses who observed relevant events; and
- Notes recording what was said, when it occurred and who was present.
Timing can be important, but timing alone does not necessarily prove reprisal. The surrounding facts, the employer’s stated explanation and how comparable employees were treated may also be relevant.
In some statutory reprisal proceedings, legislation may place the burden on the employer to establish that its actions were not taken for a prohibited reason. The applicable legal test depends on the statute and forum involved.
What Should You Do If You Suspect Workplace Reprisal?
If you believe your employer is retaliating against you, consider taking the following steps:
- Document what happened. Keep a dated record of comments, threats, disciplinary actions and changes to your employment.
- Preserve relevant records. Save lawful copies of your employment agreement, pay records, schedules, performance reviews and correspondence.
- Identify the protected right. Record what concern you raised, request you made or legal process you participated in.
- Review workplace policies. Your employer may have a complaint, accommodation, health and safety or anti-retaliation procedure.
- Be careful about resigning. Obtain legal advice before leaving your employment based on alleged retaliation.
- Get advice promptly. Different claims and legal proceedings may have different filing deadlines.
Avoid removing confidential business records or information you are not entitled to possess. An employment lawyer can advise you about which documents are relevant and may lawfully be retained.
What Legal Remedies Are Available for Workplace Reprisal?
The legal remedies available depend on the law that was violated, the forum hearing the claim and the harm suffered by the employee. Potential remedies may include:
- Reinstatement to employment;
- Lost wages or other compensation;
- Removal or correction of disciplinary records;
- Compensation for injury to dignity, feelings and self-respect in a human rights matter;
- Compensation arising from a wrongful or constructive dismissal;
- Compliance orders or other statutory remedies; and
- Legal costs where available.
The appropriate route could involve the Ministry of Labour, Immigration, Training and Skills Development, the Ontario Labour Relations Board, the Human Rights Tribunal of Ontario, a grievance process or a civil court claim.
Employees should obtain advice about the available options before starting a proceeding. In some situations, choosing one legal process can affect the ability to pursue another claim concerning the same events.
Frequently Asked Questions About Workplace Reprisal
What is a reprisal complaint?
A reprisal complaint alleges that an employer punished or threatened an employee because the employee exercised a right protected by law. The complaint process depends on whether the asserted right arises under employment standards, human rights, occupational health and safety or another law.
Is workplace retaliation illegal in Ontario?
Workplace retaliation may be illegal when it occurs because an employee exercised a legally protected right. Ontario’s employment standards, human rights and occupational health and safety legislation all contain protections against certain forms of reprisal.
Does an employee need to be fired to claim reprisal?
No. Reprisal can include dismissal, but it can also involve threats, discipline, demotion, reduced hours, lost opportunities, intimidation or another workplace penalty.
Can a negative performance review be reprisal?
A negative performance review may be reprisal if it was issued to punish an employee for exercising a protected right. However, an employer may still provide an honest and legitimate assessment of an employee’s performance. The context, timing and supporting records are important.
Is reprisal the same as discrimination?
No. Discrimination involves adverse treatment connected to a protected characteristic under human rights legislation. Reprisal involves punishment for claiming or enforcing a protected right. The same events can sometimes support allegations of both discrimination and reprisal.
Can I be punished for requesting disability accommodation?
An employer cannot lawfully retaliate against an employee for making a legitimate request for accommodation under the Ontario Human Rights Code. Retaliatory discipline, threats or termination may create a separate reprisal claim.
Can reprisal happen after a complaint has been resolved?
Yes. An employee may experience reprisal during an investigation, after a complaint is withdrawn or settled, or after a legal proceeding has ended. The issue is whether the subsequent treatment was intended as retaliation for claiming or enforcing a protected right.
How long do I have to make a reprisal claim?
Deadlines vary depending on the legislation and legal process involved. Employees should seek legal advice promptly rather than assuming that the same limitation period applies to every type of reprisal claim.
Speak With an Ontario Employment Lawyer About Workplace Reprisal
If you have been threatened, disciplined, demoted, denied opportunities or terminated after asserting your workplace rights, you may have grounds for a reprisal complaint or another employment law claim.
An employment lawyer at Monkhouse Law can review what occurred, identify the legislation that may apply and explain the legal remedies that may be available.
Contact Monkhouse Law to book a free 30-minute phone consultation.