Most employment protection legislation includes a section that prohibits an employer from retaliating in any way against an employee who tries to claim their entitlements under the legislation. This makes sense, because if employers could just punish or dismiss employees who rely on the legislation, then the legislation is meaningless. The ‘no reprisals’ section in the Ontario ESA, for example, is Section 74. It prevents an employer from threatening or punishing an employee who enquires about her rights or makes a claim, etc.
A recent decision of the OLRB gives you a flavour for how this section works. In Mediclean Inc. v. Mendoza, the employee was a cleaner. The employer promised to pay her an additional 3 hours’ pay after it assigned her to a more difficult work area, but then refused to pay her those hours. The employer also didn’t pay her proper overtime pay. The employee went to the Workers’ Action Centre, an employee advocacy centre in Toronto, and a lawyer there wrote to the employer requesting they comply with the Act.
Within days of the letter from the lawyer, the employer gave the employee a ‘written warning’ for poor performance, and sent one of the owners of the company to ‘retrain’ her. After this, the employee quit, and filed a claim under the ESA seeking the outstanding money, and claiming both that the faux discipline was a reprisal for her seeking to recover her ESA entitlements and also amounted to a constructive dismissal under the ESA, entitling her to termination pay.
The employee won all of her arguments. The OLRB found that Section 74 applies when:
1. The employee has engaged in a protected activity (such as claiming their ESA entitlements);
2. The employer was aware or suspects that the employee engaged in the protected activity;
3. The employer penalized or threatened to penalize the employee; and
4. There is intention, i.e. that the penalty or threat of penalty by the employer was because the employee engaged in the protected activity.
The onus is on the employer to prove that there wasn’t a reprisal. In this case, the Board found the employer had failed to meet that burden. Even though there was apparently documentation that customers had complained about the employee’s work a month earlier, the fact that the employer took no action until after the Workers’ Action Centre sent its letter showed that the real reason for the alleged discipline was to punish the employee for claiming her entitlements.
The Board also found that the discipline and the failure to pay the employee her entitlements under the Act amounted to a constructive dismissal. Section 56(1)(b) of the Act says that a termination under the Act occurs when:
“the employer constructively dismisses the employee and the employee resigns from his or her employment in response to that within a reasonable period.”
Note the remedy here. Obviously the employer was ordered to pay the outstanding wages. The remedy for the reprisal was wages for the entire period between the date the employee quit and the date she ultimately got a new job three months later. Plus, since she was dismissed, she was also entitled to termination pay.
Of course, while this seems like a win for the employee, keep in mind that she still lost her job. Unfortunately, this is the common result. Most employees do not pursue ESA complaints against their employers until after they have already quit. The Board does have the power to reinstate the employee (even against the employers’ wishes), but few employees actually ask for that to happen because they know that the work environment has been poisoned by the mere fact that they had the gall to ask for what they are legally entitled to. Who wants to work for an employer that will be looking for any reason to dismiss them.
Can you think of any solution to this problem?