The Ontario Employment Standards Act, like most employment-related statutes, includes a section that prohibits an employer from retaliating against an employee who seeks to enforce their rights under the legislation. This is obviously important, since if employer’s could just fire people who claim their legal rights, the legal rights would be empty. Section 74 of the ESA reads in part:
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;
In a recent decision in a case called Brown v. Star Diner, the OLRB considered whether an employer who granted an employee a vacation that she was not entitled to under the ESA violated Section 74 when it later fired her for taking the vacation. The employee had not worked the one year period necessary to qualify for vacation under the ESA. However, when she requested some time off, the employer granted her request. She took the holiday, but when she returned, she was dismissed. She alleged that she was dismissed as retaliation for taking the vacation.
The OLRB ruled that the employee was entitled to termination pay (one week’s pay, since she worked less than one year), plus an additional $500 in damages for breach of the Section 74 reprisal section. That means that the employer was in violation of Section 74 for punishing the employee for taking a vacation that was not mandated by the ESA. How does the Board come to this conclusion?
It gets there by finding that the agreement of the Employer to offer a vacation even though the employee was not entitled to one yet under the ESA amounted to a “greater benefit” under Section 5(2) of the ESA. That section says this:
(2) If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.
According to the Board, having “agreed to confer a greater right or benefit on the applicant under subsection 5(2) of the Act, the responding party employer was therefore prohibited under section 74 of the Act from penalizing or dismissing the applicant when she exercised her right to take the requested time off.” So there is a warning here for employers. When you grant an employee benefits that are superior to those required by the ESA, there may still be ESA implications. This case shows us that the no reprisals section applies. In addition, since “wages” are defined in the ESA as including any remuneration paid under an employment contract, a refusal to pay wages and benefits that are superior to the ESA requirements can nevertheless be enforced under the ESA.