Understanding Workplace Reprisal
Introduction
Workplace reprisal is a critical yet often misunderstood issue. It involves an employer punishing an employee for exercising their legal rights, particularly around human rights and safety. This blog post will explore the concept of reprisal, its applicability, enforcement of rights, and remedies, using key case studies for illustration.
Defining Reprisal
Ontario’s Human Rights Code (the “Code” ) defines reprisal in section 8: "Every person has a right to claim and enforce his or her rights under this Act...without reprisal or threat of reprisal for so doing." To prove reprisal, it's crucial to demonstrate that any negative action or threat was a retaliation for claiming or enforcing a right under the Code. Notably, unlike discrimination claims where intent is not required, reprisal claims must show the action was intended as punishment or retaliation. This makes it harder to prove than discrimination itself, which does not require intent, but rather it focusses on impact.
Other Acts also protect against reprisal, particularly the Ontario Health and Safety Act, where in section 50 it provides:
50 (1) No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker;
(c) impose any penalty upon a worker; or
(d) intimidate or coerce a worker,
because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act. R.S.O. 1990, c. O.1, s. 50 (1).
Key Elements of Proving Reprisal
As highlighted in Noble v. York University, 2010 HRTO 878, three elements are essential to establish reprisal:
An action or threat against the applicant.
A connection to the applicant having claimed or tried to enforce a right under the Code.
An intention by the respondent to retaliate for the claim or enforcement attempt.
Case Study: Seargeant v. Give and Go Prepared Foods Corp. 2022 HRTO 1446. In this case, the applicant's termination shortly after making complaints of discriminatory treatment exemplified reprisal. The HRTO found no evidence of performance issues influencing the decision. The use of the term “the right fit” was scrutinized, as it can sometimes mask discriminatory motives. The Tribunal inferred that the termination was an intentional act of reprisal. At paragraph 33 of the decision the Tribunal said the following:
There was no evidence to suggest that performance issues were a factor in the decision. Moreover, the fact that the applicant was afforded the opportunity to work at a different location or on an afternoon shift instead of a night shift further supports that performance issues were not a factor in the decision. In addition, the characterization that the applicant was not “the right fit” is troubling as the phrase “the right fit” can at times be used to conceal discriminatory considerations. In all the circumstances an inference exists to support that terminating the applicant’s assignment on the night shift was an act of reprisal by the respondent and was intentional.
Enforcing Your Rights
If you suspect reprisal, collect evidence like communications or witness statements. File a complaint with a relevant body, citing specific laws and regulations. Understanding the nuances of these laws is key to a successful claim.
Possible Remedies for Reprisal
If you experience reprisal, you can seek remedies like compensation for lost wages and general damages for pain and suffering, and orders for the employer to change practices. The aim is to address the harm and prevent future occurrences.
Conclusion
Understanding workplace reprisal is crucial for maintaining fairness. Knowing your rights, the process for enforcing them, and potential remedies empowers you to address such issues effectively. Staying informed and seeking legal advice when needed is pivotal in this journey.Don’t worry about sounding professional. Sound like you. There are over 1.5 billion websites out there, but your story is what’s going to separate this one from the rest. If you read the words back and don’t hear your own voice in your head, that’s a good sign you still have more work to do.
Be clear, be confident and don’t overthink it. The beauty of your story is that it’s going to continue to evolve and your site can evolve with it. Your goal should be to make it feel right for right now. Later will take care of itself. It always does.