Penalizing employees for making complaints can create problems for employers
Exclusive to Canadian HR Reporter from Rudner Law.
One of your employees has complained about not receiving overtime pay after having worked a few extra hours without permission. Your company has policies stating that unauthorized overtime will not be paid.
Plus, the employee's employment is subject to an employment agreement that limits the employer's obligations on dismissal to their statutory entitlements on dismissal.
It should be easy to deal with, right? The employee has breached your policies, their employment agreement is valid, and because of that, it will not cost a lot to fire them. The easiest solution is to dismiss them and pay them their entitlements under their employment agreement. You prepare and deliver a dismissal letter, pay the employee's statutory entitlements, and escort them out.
To your surprise, a few weeks later an Employment Standards Officer (ESO) from the Ministry of Labour, Training & Skills Development contacts you to advise that your former employee has made a complaint against the company, asserting that their dismissal was a reprisal for exercising their rights. You talk to the company's lawyer and explain the situation, after which, the company's lawyer sighs in a way that sounds expensive and explains the situation you are in.
What is reprisal?
A reprisal is an act of retaliation in response to an initial act. From an employment law perspective, not all reprisal is problematic. For example, disciplining an employee for complaining that their desk was moved is probably not going to be a reprisal.
However, disciplining an employee for complaining about unsafe work conditions or a shortfall in pay may be reprisal, and can create significant issues for a Company to address.
Statutes governing employment law, like the Employment Standards Act, 2000 (ESA), the Occupational Health and Safety Act (OHSA) or the Human Rights Code the are meant to protect employees' rights. These are interpreted broadly by court or tribunal to ensure the widest possible coverage. However, coverage without protection to use it is meaningless: if an employer can discipline or dismiss an employee for invoking their statutory rights, that statute ceases to have any effect. To address this, each statute includes a prohibition on reprising against an employee for exercising their rights under it.
Remedies for reprisal
The presumptive remedy for reprisal is reinstatement: putting the employee back in the job from which they were dismissed. If the employee does not want to be reinstated or if the reviewing body (either an ESO or a tribunal) determines that reinstatement would be inappropriate, it may award.
The employer will also be ordered to make the employee whole for their time off work by repaying them their lost wages between the date of dismissal and the date of the hearing.
Finally, the employer may be ordered to pay the employee an amount in damages for pain and suffering from having been reprised against; this can be up to $5,000. This is all in addition to any damages the employer may be ordered to pay based on the employer’s breach of the statute itself.
Overtime rules
The ESA says that an employee must be paid whenever work is done, irrespective of whether the employer consents to the employee working the time claimed. An employer may set a policy requiring any employee to get permission before working overtime, but it cannot refuse to pay an employee for time worked, even if it is done in breach of this policy.
The employer may discipline the employee for not complying with the policy, but not paying is not an option.
In other words, the employee was claiming their rights under the ESA to be paid for the time they had worked. The company’s decision to dismiss the employee was a reprisal for the employee seeking to enforce their rights under the ESA. The ESO is likely to order the employee to be reinstated and paid for their lost time from work.
Takeaways on reprisal
The employer typically has the majority of the power in the employment relationship. Employment-related statutes like the ESA are there in an attempt to level the playing field between the parties. To ensure that each employee receives the protection intended by these statutes, these include penalties for employers who punish employees for exercising their rights under the statute.
It is surprisingly straightforward to avoid reprising against an employee. An employer should respect an employee's exercise of their rights under a statute, whether it is the ESA, the OHSA, or the Code. The employer can do this by treating the employee’s request seriously: investigate the complaint and see if the Company's actions actually breached the relevant statute. If it did, take whatever steps are necessary to remedy this breach.
Penalizing the employee for making the complaint can create liability for the employer, beyond any that would have been due for the breach of the underlying statute. That is true even if the complaint is found to be unfounded; you still cannot penalize an employee for a good faith effort to enforce their legal rights.
Geoffrey Lowe is an associate at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].
