Part XVIII - Reprisal prohibited
The intention of Part XVIII (Reprisal) is to ensure that employees can pursue their rights under the Employment Standards Act, 2000 and participate in proceedings under the Act or s. 4 of the Retail Business Holidays Act, RSO 1990, c R.30 free from employer reprisal.
Section 74 - Reprisal Prohibited
Prohibition - s. 74(1)
Subsection 74(1) prohibits employers and anyone acting on their behalf from taking reprisal action against employees for asking their employers to comply with the Employment Standards Act, 2000, making inquiries about their rights under the Act, filing a complaint under the Act, exercising or attempting to exercise their rights under the Act, giving information to an employment standards officer, making inquiries about or disclosing rate of pay in relation to compliance with Part XII of the Act (Equal Pay for Equal Work) or participating in proceedings under the Act or s. 4 of the Retail Business Holidays Act, RSO 1990, c R.30. In addition, it prohibits reprisals because an employee is or will be eligible to take, intends to take or takes a leave under Part XIV of the Act, or because the employee's wages are or may be subject to garnishment or a court order.
Under the ESA 2000 a reprisal contrary to s. 74 may result in the issuance of any or all of the following:
- A compliance order pursuant to s. 108;
- An order for reinstatement (or, with respect to the Lie Detector provisions, an order to hire) or compensation or both compensation and reinstatement pursuant to s. 104;
- A notice of contravention pursuant to s. 113.
A reprisal, like any contravention of the Act, could also be the subject of a prosecution under the Provincial Offences Act, RSO 1990, c P.33.
Determining whether a reprisal has occurred - The four-step test
The Program applies a four-step test for determining whether an employer, or a person acting on behalf of the employer has engaged in a reprisal contrary to s. 74(1). This four-step test is set out below:
- Step 1: Is the person alleged to have committed a reprisal the employer or a person acting on behalf of the employee's employer?
- Step 2: Did the employer or person acting on behalf of the employer intimidate, dismiss or otherwise penalize or threaten to intimidate, dismiss or otherwise penalize the employee?
- Step 3: Did the employee engage in any of the protected activities set out in clause 74(1)(a) or was the employer required by a court order or garnishment to pay an amount owing to the employee over to a third party as described in clause 74(1)(b)?
- Step 4: Did the employer or person acting on behalf of the employer intimidate, dismiss or otherwise penalize or threaten to intimidate, dismiss or otherwise penalize the employee because they engaged in the protected activities described in clause 74(1)(a) or because of a situation described in clause 74(1)(b)?
If all four questions are answered in the affirmative, a breach of s. 74(1) is established. Note that s. 74(2) places the burden of proof on the employer in the context of an allegation of reprisal, except on review of a notice of contravention under s. 122. Each aspect of this test is discussed in more detail below.
Step 1: Is the person alleged to have committed a reprisal the employee's employer or a person acting on behalf of the employee's employer?
The first determination that must be made is whether the person(s) against whom the allegation of reprisal is made is the employee's employer or a person acting on behalf of the employee's employer. There can be no violation of s. 74(1) if the person in question is not the employee's employer or a person acting on behalf of the employee's employer.
This first determination is made up of two parts: first, is the person who is making the allegation an "employee", and second, is the person whose actions are being complained of the "employer" or someone "acting on behalf of [the] employer".
The definition of employee in ESA Part I, s. 1 includes a person who was an employee. Accordingly, an individual continues to be protected from reprisal by their former employer (and anyone acting on behalf of the former employer) even after the individual's employment has terminated. For example, employers are prohibited from giving negative job references for a former employee if the negative reference is given because the employee had asserted their ESA 2000 rights when employed by that employer.
Some support for this position may be inferred from the decision of the Ontario Labour Relations Board in Chafe v Home Base Non-Profit Housing, 2005 CanLII 9130 (ON LRB). In that case, the employee had filed a complaint under the Act that was dismissed by the investigating officer. After she began working for a new employer she received a letter from her former employer that referred to her complaint and that was critical of her, and which led her to believe that the former employer was attempting to jeopardize her new employment relationship. At that point, she applied for review of the officer's decision. Although the Board dismissed her application as being outside the 30-day appeal period, it noted that the former employer's actions were clearly linked to her complaint and suggested that if those actions continued it might constitute an illegal reprisal for having filed the complaint.
A job applicant will generally fail this step of the test because a job applicant is not an employee. The only exception is in the context of Part XVI, Lie Detectors. An expanded definition of employee in ESA Part XVI, s. 68 that applies only to Part XVI includes an applicant for employment. Accordingly, a job applicant will pass this first step of the test if the reprisal claim is based on the Lie Detectors provisions - see ESA Part XVI for a more detailed discussion of this issue.
The definition of "employer" is set out in ESA Part I, s. 1(1) as follows:
An employer is bound by the actions of those persons who act on its behalf. The phrase "person acting on behalf of the employer" is not a defined term. It is Program policy that this phrase be interpreted broadly. Program policy is that persons acting on behalf of an employer may therefore include the following:
- An officer or manager of the employer;
- A person who is part of the directing mind of the employer: for example a controlling shareholder;
- An employee of the employer, if the employee's conduct was authorized, adopted or condoned by the employer;
- A person who, although not an officer, manager, director or employee of the employer, is someone whom the employer has allowed to speak for the employer or carry out actions on the employer's behalf.
- Without restricting the generality of the foregoing, this could, depending on the particular circumstances, include the spouse of the employer or the spouse of an officer, manager or director of the employer, an independent contractor with whom the employer is in a business relationship, and a consultant retained by the employer.
Step 2: Did the employer or person acting on behalf of the employer intimidate, dismiss, otherwise penalize or threaten to intimidate, dismiss or otherwise penalize the employee?
Section 74(1) prohibits employers from intimidating, dismissing, otherwise penalizing employees or threatening to do so for enumerated reasons. Such conduct is considered a reprisal and contrary to s. 74(1). Some examples of employer conduct found to constitute a reprisal have included:
- Altering job conditions or responsibilities unfavourably - see Pitts Donut Limited v Smith
- Passing over the employee when offering promotions - see Pitts Donut Limited v Smith
- Branding an employee as a "troublemaker" then unfairly disciplining and harassing the employee because the employee sought to exercise their reinstatement rights - see Pitts Donut Limited v Smith
- Disciplining an employee for poor performance when the work performance was due to pregnancy - see Hernando's Hideaway Inc. v McLeod
The meaning of "intimidate", "dismiss", "penalize" and "threaten" is discussed in greater detail below.
To intimidate is to compel someone, by causing fear in them, to do something or to refrain from doing something. Intimidation can range from the obvious, such as an employer making a public example of employees who have asked about their rights under their Act by terminating them, to the subtle, such as a campaign of veiled threats and innuendos designed to make the employee feel reluctant and fearful about enforcing their rights under the Act.
For example, a manager might tell employees, "The owner really hates it when you refuse to work extra hours. I would hate to get on his bad side."
For a discussion of prohibited employer actions in the context of attendance management programs and perfect attendance bonuses in relation to statutory leaves of absence, see ESA Part XIV, s. 52(1).
It is Program policy that intimidate is to be interpreted broadly.
To dismiss an employee is to terminate their employment. The term dismissal includes constructive dismissal.
The phrase "otherwise penalize" is very broad and will include any punishment or disadvantage imposed on an employee by an employer or a person acting on behalf of an employer. This includes all forms of discipline and any change in the terms and conditions of the employee's employment that are disadvantageous to them, such as lay-offs, pay cuts, reduction of hours, etc. It also includes harassment, such as, for example, where an employer repeatedly addresses an employee who refused to work excess hours as "clock watcher". Any conduct by the employer that has the effect of imposing a penalty (whether large or small) on an employee will come within the meaning of "otherwise penalize".
For a discussion of prohibited employer actions in the context of attendance management programs and perfect attendance bonuses in relation to statutory leaves of absence, see ESA Part XIV, s. 52(1).
Penalty imposed on someone other than the employee
One question that may arise is whether an employee is otherwise penalized if the employer punishes or imposes a disadvantage on someone other than the employee. It is Program policy that this is possible if the employer's action results in some kind of harm to the employee, whether it be economic, emotional, or has any other effect that harms the employee.
For example, if an employee and the employee's spouse worked for the same employer and the employer fired the employee's spouse because the employee had engaged in a protected activity under s. 74(1)(a), or the employee's wages were subject to garnishment or court order under s. 74(1)(b), the employer could be found to have reprised against the employee contrary to s. 74.
Another example is where the employer (Employer A) of an employee who exercised their ESA 2000 rights knows the employer (Employer B) of the employee's spouse. Employer A, wishing to penalize the employee for exercising their rights but wanting to avoid being in violation of the ESA 2000, contacts Employer B and arranges to have the employee's spouse fired. In this case, Employer A could be found to have penalized the employee who exercised their rights.
Withholding a reward or positive opportunity
A penalty can also include, depending on the circumstances, the withholding of a reward or the withholding of a positive opportunity. That is, there will be a penalty where opportunities or rewards are automatically denied to employees who have exercised a right by refusing to do something, or who have exercised a right by not volunteering to do something.
For example, opportunities to work overtime and, more importantly, to receive overtime pay are automatically denied to employees who sometimes exercise their right to refuse to work excess hours when requested, or to employees who have not volunteered to work excess hours.
Another example is where the employer puts employees who have exercised a right to not work excess hours at the bottom of the list of people to whom the offer of overtime is made.
A third example is where retail employees who do not volunteer to work Sundays are automatically passed over for promotion.
In all of these cases, the employer has imposed a penalty on the employees. A reward or a positive opportunity - overtime pay or a promotion in these examples - has been denied an employee because they exercised an ESA 2000 right. An employee missing out on a positive opportunity is the flip side of the employee having something negative imposed on them - they are both penalties.
Some might argue that employers are not penalizing employees by, for example, not offering weekend overtime opportunities to employees who refused to work excess hours during the week, or by not offering promotion opportunities to retail employees who refuse to work Sundays; they are just providing incentives to encourage employees to work excess hours or on Sundays. It is Program policy that there is nothing wrong with the offer of incentives or rewards for working additional hours. However, the incentive or reward must be made available to all employees; it cannot be denied to employees because they have exercised an ESA 2000 right. If the opportunity to receive the incentive or reward is denied to those employees, it is Program policy that they are being penalized.
Threaten to intimidate, dismiss or otherwise penalize
The prohibition against reprisal extends to threats by employers to intimidate, dismiss or otherwise penalize an employee. There is no need for an employer to actually intimidate, dismiss or otherwise penalize an employee for the employer's conduct to be captured by s. 74. All that is required is that the employer threatens the employee with intimidation, dismissal or another penalty.
For example, a threat to transfer an employee, where the transfer would or might be considered to be a demotion, or where the new job is less appealing to the employee, if the employee does not sign an agreement to average overtime would likely be considered a threat to penalize an employee, contrary to s. 74(1).
Another example is where a manager tells employees: "The owner really hates it when you refuse to work extra hours; I sure would hate to get on his bad side." Even if the employees were not actually deterred from exercising their right to refuse to work excess hours, this would likely be considered a threat to penalize, or a threat to intimidate, an employee, contrary to s. 74(1).
Issue of intention in step 2
It is Program policy that before it can be said that the employer has committed one of the prohibited actions (i.e., dismiss, intimidate, otherwise penalize, or threaten to do any of those things), an element of intention must be established.
Where the employer takes an action with the aim of harming the employee, the element of intention is obviously met.
The necessary element of intention will also be met where an employer takes an action that is genuinely motivated by what it considers legitimate business reasons and not by any desire to cause harm or loss to the employee, but which the employer knows or ought to know will cause harm or loss to the employee.
For example, an employer transfers an employee who refuses to work excess hours from one position to another, because in the employee's original position a refusal to work excess hours hampers the achievement of production goals, but the new position is not nearly as sensitive in that respect. If the new job is one that the employer knew or ought to have known is one that the employee would find significantly less appealing, it does not matter that the employer's motive was not to harm the employee; it is sufficient that the employee did in fact suffer a loss.
The test is whether the employer knew or ought to have known. An employer is presumed to know the natural consequences of its actions; it is no defence for the employer to say that it never turned its mind to whether its action would have a negative impact on the employee. It is Program policy that if the employer had turned its mind to that question it would have realized that there would be a negative impact on the employee, the element of intention is met. Employers cannot avoid liability by not thinking about the consequences for the employee of actions taken in response to the employee's exercise of their right.
The "ought to have known" part of the "knew or ought to have known" tests means that an employer could be seen as having the requisite intent, even if it was not aware of the impact that its action would have on the employee. However, an employer cannot be expected to have perceived the possibility of a negative impact where such impact is based wholly on eccentric preferences or unusual reactions on the part of the employee.
For example, if a single employee with no childcare responsibilities is transferred from one job to another and the only difference between the two jobs is that the employee will start their eight-hour shift one hour earlier and the employee has an unusually intense dislike for rising early in the morning, generally that will not meet the element of intention. The employer could not reasonably have been expected to know the employee had an extreme aversion to getting up early. On the other hand, if the employer knew prior to transferring the employee that the employee had such an intense dislike, the requisite element of intent will be met, because the employer knew.
Step 3: Did the employee engage in any of the protected activities set out in ss. 74(1)(a) or was the employer required by a court order or garnishment to pay an amount owing to the employee over to a third party as described in clause 74(1)(b)?
For the third part of the test to be met, the employee must have engaged in one or more of the protected activities set out or the employer must have been required because of a court order or garnishment to pay money owing to the employee over to a third party:
If the employee did not engage in one of the protected activities or there was no such court order or garnishment, the employee is not protected by s. 74 against reprisal. Each protected activity is discussed in detail below.
An employee is protected from reprisal by their current employer with respect to the activities listed in subparagraphs (a)(ii) through (viii) even if the employee was not employed by the current employer when the employee engaged in the activity. For example, an employer is prohibited from taking reprisal action against an employee because the employee filed a complaint against their former employer.
Asks employer to comply with this Act and regulations
Section 74(1)(a)(i) prohibits an employer and a person acting on behalf of an employer from intimidating, dismissing or otherwise penalizing an employee or threatening to do so because the employee has asked the employer to comply with the Act or the regulations.
It is Program policy that the protected activities under s. 74(1)(a)(i) must be broadly interpreted. Generally speaking, any activity in which the employee's objective is to get the employer to comply with the Act or regulations should be seen as being protected activities. These include but are not limited to:
- Complaining to the employer or its agent about an alleged breach of the Act or the regulations;
- Asking the employer or its agent to comply with the Act or the regulations;
- Advising the employer or its agent of an intention to file a complaint under the Act;
- Asking the employer to comply with an Order issued by an employment standards officer; or
- Commencing a civil action alleging a breach of the Act or the regulations.
Makes inquiries about rights under the Act
Section 74(1)(a)(ii) provides that it is a contravention of s. 74(1) for an employer or a person acting on behalf of an employer to intimidate, dismiss or otherwise penalize an employee, or threaten to do so, for making inquiries about their rights under the Act.
It is Program policy that the protected activity under s. 74(1)(a)(ii) must be broadly interpreted. Generally speaking, any inquiry made by the employee with the objective of finding out what their rights are under the Act, regardless of to whom the inquiry is directed, should be seen as a protected activity. This would include but is not limited to:
- Inquiries to the Ministry regarding the employee's rights or the employer's obligations under the Act;
- Inquiries to the employer or its agent regarding the employee's rights or the employer's obligations under the Act;
- Inquiries to a lawyer or to any other person regarding the employee's rights or the employer's obligations under the Act.
Files a complaint with the Ministry under this Act
Section 74(1(a)(iii) provides that it is a contravention of s. 74(1) for an employer, or a person acting on behalf of an employer, to intimidate, dismiss or otherwise penalize an employee, or threaten to do so, for filing a complaint under this Act. See ESA Part XXII, s. 96(1) for a discussion of the provisions for filing a complaint under the Act.
It is Program policy that the protected activity under s. 74(1)(a)(iii) must be broadly interpreted. Accordingly, there will be protection for an employee under this clause even if the employee tries to file a complaint but uses the wrong form, or files a complaint more than two years after the violation, which, pursuant to s. 96(3), means that it is deemed not to have been filed.
Exercises or attempts to exercise a right under this Act
Section 74(1)(a)(iv) provides that it is a contravention of s. 74(1) for an employer or a person acting on behalf of an employer to intimidate, dismiss or otherwise penalize an employee, or threaten to do so, for exercising or attempting to exercise a right under this Act. This includes, for example, an employee refusing to agree to average hours of work for the purpose of calculating overtime, or attempting to revoke with two weeks' notice an agreement to work excess hours.
This provision will only apply where the employee is exercising or attempting to exercise a right under the ESA 2000. This provision would not apply if the employee is exercising a right under another statute or their contract of employment that is not otherwise a right nor an enforceable greater right or benefit under the ESA 2000.
For example, an employee regularly works 44 hours in a work week. The employee refuses his employer's request that he work an additional four hours in the work week. The employee receives a letter of discipline for his refusal and he alleges that his employer has committed a reprisal against him. The employer's conduct cannot constitute a reprisal within the meaning of s. 74(1)(a)(iv) because the employee was not exercising or attempting to exercise a right under the Act. Employees have no right under the Act to refuse to work hours in addition to their regular work week if the additional hours would not result in them working more than the applicable daily limit on the day in question or more than 48 hours in the work week in question.
Another example deals with direct deposit. Section 11(4) of the Act permits employers to pay wages by direct deposit if certain conditions are met, such as there being an account in the employee's name. While the employee's agreement to be paid by direct deposit is not required by the ESA 2000, for practical reasons an employee's agreement is necessary as banks do not permit employers to open an account on behalf of an employee. Accordingly, employees who do not wish to be paid by direct deposit can prevent an employer from paying their wages in that manner by refusing to open an account. As it is often more expensive and administratively cumbersome to pay wages by cheque, employers may threaten or penalize employees who do not open an account. It is the Program's view that ESA Part V, s. 11(4) does not grant employees a right to not be paid by direct deposit; it merely sets out conditions that have to be met in order for direct deposit to be permitted under the Act. Accordingly, employees who refuse to open an account so as to prevent an employer from paying them by direct deposit are not exercising a right under this Act, and therefore are not protected from reprisal.
Another situation deals with sick leave. For example, an employee is absent from work and asserts a right to sick leave, but it is subsequently revealed that the employee was not telling the truth and did not in fact have a right to be absent. The employer is not prohibited by s. 74 from penalizing the employee because the employee was not exercising or attempting to exercise a right under this Act; they did not have a right to take a sick leave.
On the other hand, refusing to sign an authorization allowing a deduction from wages pursuant to s. 13(3) is a protected activity. For example, an employer wants an employee to authorize a deduction from wages that is not one that is prohibited by s. 13(5), the employee refuses, and the employer terminates the employee's employment in response. It is Program policy that the employee, in refusing to provide their authorization, engaged in a protected activity, and the employer would therefore be in violation of s. 74. The difference between this situation and the direct deposit example above is that in this case, the essential condition for making the deduction - the employee's authorization - is set out in the Act. In the direct deposit example, the employee's agreement is not a condition that is set out in the Act. Although the employee's agreement will, as a practical matter, have to be obtained in order for the employer to be able to pay by direct deposit. That is a function of the policies of banks and other financial institutions. It is not a requirement of the Act.
Another example is the issue of whether an employee is engaging in a protected activity if the employee fails to give advance notice that he or she is going to take a sick leave, family responsibility leave or a bereavement leave. For a detailed discussion of this issue, see ss. 50(3) and (4) [sick leave], ss. 50.0.1(4) and (5) [family responsibility leave] and ss. 50.0.2(4) and (5) [bereavement leave].
Rights under the ESA 2000 include withdrawing from agreements to give up the default employment standard and receive the entitlements under the alternate employment standard. For example, the default employment standard with respect to meal breaks is to receive an eating period of at least 30 minutes, but employees can agree to the "alternate" employment standard of two shorter eating periods that together total at least 30 minutes. In most cases, employees are entitled to revoke their agreement to the alternate standard and revert back to the default standard, and doing so is a protected activity under this clause. If an employer penalizes an employee because the employee withdrew their agreement, that will be a violation of s. 74.
There are some situations where an employee's ability to revoke an agreement is restricted. For example, an employee can revoke an excess hours agreement only if they give the employer two weeks' written notice. If, during the time when the employee is prevented from revoking the agreement, the employee purports to revoke the agreement and attempts to rely on the default employment standard, the employee cannot be said to be exercising a right under the Act because the employee was purporting to exercise the right at a time when the Act did not in fact give them the right; the employee therefore will not be protected from reprisal. Other examples where the employee's ability to revoke an agreement to the alternate standard is restricted include:
- ESA Part VIII, s. 22(6): employees cannot withdraw from an overtime averaging agreement before the expiry date in the agreement unless the employer also agrees;
- O Reg 285/01, s. 10: employees in retail business establishments who are hired on or after September 4, 2001, who agree in writing at the time of hire that they will work on Sundays cannot withdraw from that agreement - unless making the agreement a condition of hire was in violation of the Human Rights Code, RSO 1990, c H.19, or unless the employee needs the Sunday off for reasons of religious belief or religious observance;
- O Reg 285/01, s. 32(1): employees cannot unilaterally revoke an agreement made at the time of the employee's hiring to work excess daily hours that has been approved by the Director.
It is Program policy that the protection of this clause applies in cases where an employer dismisses, intimidates, penalizes or threatens to do so because it wants to prevent an employee from exercising or attempting to exercise a right under the ESA 2000, even if the employee has not actually exercised or attempted to exercise a right.
For example, one employee asserts their right to receive public holiday pay. The employer terminates that employee, then convenes a meeting of all the other employees and threatens them by telling them that if anyone else tries to get their public holiday pay they too will be fired. Even though none of the other employees has actually exercised or attempted to exercise their right to public holiday pay, this clause will apply to them, so if they file a reprisal claim they will pass step 3 of the test. To take the opposite view would defeat the intention of s. 74 which is to ensure employees can freely exercise their ESA 2000 rights. It would also permit an absurd result where an employer could avoid liability by pre-emptively threatening employees with dismissal on their first day of employment and every day thereafter. If the Program were to take the view that protection only applies once an employee actually exercises or attempts to exercise a right, then employers who are successful in intimidating employees out of ever exercising or attempting to exercise a right would not ever be found to have violated s. 74.
It is Program policy that the protected activity under s. 74(1)(a)(iv) must be broadly interpreted.
Gives information to an employment standards officer
Section 74(1)(a)(v) prohibits an employer from intimidating, dismissing or otherwise penalizing an employee, or threatening to do so, for giving information to an employment standards officer.
It is Program policy that this provision must be interpreted broadly. Protected activities under this provision include but are not limited to:
- Volunteering information to an employment standards officer;
- Responding to a request for information from an employment standards officer.
Makes inquiries about the rate paid to another employee
The Fair Workplaces, Better Jobs Act, 2017, SO 2017, amended the ESA to include s. 74(1)(a)(v.1), effective April 1, 2018. Section 74(1)(a)(v.1) prohibits an employer from reprising against an employee who makes inquiries about the rate paid to another employee for the purpose of determining, or assisting another person in determining, whether an employer is complying with the equal pay for equal work provisions in ESA Part XII.
For example, employee A may ask fellow employee B about his or her rate of pay in order to determine whether employee A is receiving the same rate of pay for equal work, pursuant to section 42, Part XII. An employer is prohibited from reprising against employee A for making this inquiry.
Effective January 1, 2019, the Making Ontario Open for Business Act repealed s. 42.1 which provided equal pay for equal work on the basis on employment status. The question might arise as to what reprisal protection exists in relation to this repealed provision. Section 74(1)(a)(v.1) provides protection against reprisal where an employee made inquiries about the rate that was paid to another employee both during the timeframe that s. 42.1 was in effect (from April 1, 2018 to December 31, 2018) and after its repeal where the purpose of the inquiries is to determine, or to assist another person in determining, whether an employer was in compliance with section 42.1. In other words, the specified inquiries are protected regardless of when they occurred, as long as they relate to a rate that was paid when s. 42.1 was in force (from April 1, 2018 to December 31, 2018).
Discloses his/her rate of pay to another employee
The Fair Workplaces, Better Jobs Act, 2017, SO 2017, amended the ESA to include s. 74(1)(a)(v.2), effective April 1, 2018. Section 74(1)(a)(v.2) prohibits an employer from reprising against an employee who discloses his or her rate of pay to another employee for the purpose of determining, or assisting another person in determining, whether an employer is complying with the equal pay for equal work provisions in section 42, Part XII.
For example, employee A may divulge his or her rate of pay to employee B to assist employee B in determining whether she is receiving the same rate of pay for equal work, pursuant to Part XII. An employer is prohibited from reprising against employee A for disclosing this information. Note that if employee B also divulged his or her wage rate to employee A as part of this discussion, the employer is equally prohibited from reprising against employee B.
Effective January 1, 2019, the Making Ontario Open for Business Act repealed s. 42.1 which provided equal pay for equal work on the basis on employment status. The question might arise as to what reprisal protection exists in relation to this repealed provision. Section 74(1)(a)(v.2) provides protection against reprisal where an employee discloses his or her rate of pay to another employee both during the timeframe that s. 42.1 was in effect (from April 1, 2018 to December 31, 2018) and after its repeal where the purpose of the disclosure is to determine, or to assist another person in determining, whether an employer was in compliance with section 42.1.
In other words, the specified disclosure is protected regardless of when it occurred, as long as it relates to a rate that was paid when s. 42.1 was in force (from April 1, 2018 to December 31, 2018).
Testifies, is required to testify or otherwise participates in a proceeding under this Act
Section 74(1)(a)(vi) prohibits an employer from intimidating, dismissing or otherwise penalizing an employee, or threatening to do so, for testifying, being required to testify or otherwise participating in a proceeding under the Act.
It is Program policy that this section must be interpreted broadly. Protected activities under this section include but are not limited to situations in which the employee is:
- A party to a proceeding;
- A party to a proceeding;
- Required to be a witness in a proceeding; or
- A representative, advocate, agent or an advisor in a proceeding.
It is irrelevant to the application of this section whether the employee's participation is voluntary.
Participates in proceedings under s. 4 of the Retail Business Holidays Act
The Retail Business Holidays Act (“RBHA”) prohibits most retail stores from opening on holidays as defined in that Act. However, s. 4 of the RBHA establishes a process for making representations at municipal councils regarding existing or proposed tourism exemption by-laws. Section 74(1)(a)(vii) provides protection against reprisal for those employees who participate in this process.
It is Program policy that this section must be interpreted broadly. Protected activities under this section include but are not limited to participation as a:
- Witness; or
- Representative, advocate, agent or advisor.
Although participation in this type of a proceeding would almost always be voluntary, it is, as with the protection accorded to participation in proceedings under the Act by s. 74(1)(a)(vi), irrelevant whether the employee's participation is voluntary.
Is or will become eligible to take a leave, intends to take a leave or takes a leave under the Act - s. 74(1)(a)(viii)
Section 74(1)(a)(viii) provides protection for employees who are intimidated, dismissed or otherwise penalized or threatened with intimidation, dismissal or other penalties because of the following situations.
An employee who qualifies for protection under this provision may also have rights under the Human Rights Code that have been violated, in that they may have been discriminated against because of sex (which includes pregnancy) or family status. Therefore, the claimant may wish to contact Ontario's Human Rights Legal Support Centre in addition to filing a claim with the Ministry of Labour.
Employee is eligible to take a Part XIV leave
This includes pregnancy, parental, family medical, organ donor, family caregiver, critically illness, child death, crime-related child disappearance, domestic or sexual violence, sick, family responsibility, bereavement, declared emergency, or reservist leave.
For example, an employee's spouse has just given birth. The employee is eligible for parental leave as a new parent but has not yet decided whether he will be taking the leave.
Employee will become eligible to take a Part XIV leave
For example, an employee who has just discovered that she is pregnant will be eligible for pregnancy leave when she is within 17 weeks of her due date and therefore has protection under this section.
For example, in 832746 Ontario Ltd. v Fuller, 2001 CanLII 11289 (ON LRB) the employer terminated the employment of the claimant when she was seven months' pregnant because the employer did not want a pregnant woman working in his bar. The Board found that this was a violation of s. 44 of the former Employment Standards Act, which prohibited an employer from penalizing an employee because she was eligible for leave; the employee was eligible for the leave because of her pregnancy, and terminating the employee's employment because she was pregnant was therefore a violation of the former Employment Standards Act. Further, although the Board recognized an overlap between the protections afforded under the Human Rights Code, RSO 1990, c H.19 and the ESA, it concluded there was no reason to defer the complaint under the Act to the Human Rights Code. In this regard, see also Bazinet v Thain Industries Ltd., 2004 CanLII 24706 in which the Board noted that assuming the employer is in fact aware of the employee's pregnancy, it must demonstrate that the pregnancy was not a factor in its decision to terminate her employment.
Employee intends to take a Part XIV leave
For example, an employee who is terminated by her employer because she has told other employees that she is attempting to get pregnant and will be taking her full leave entitlement if she is successful would be protected under this section.
Another example is an employee who tells his employer that he will be taking three days of sick leave for surgery that is scheduled for a date four months hence.
A third example is an employee whose mother is terminally ill and who indicates that he will be taking family caregiver leave and family medical leave in the near future.
Employee takes a Part XIV leave
This will obviously also include an employee who "took" a Part XIV leave. That is, after the leave is over, an employer is prohibited from penalizing the employee because the employee took a leave.
Court order or garnishment
Section 74(1)(b) prohibits any 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's wages are the subject of a garnishment or a court-ordered payment to a third party.
Section 7 of the Wages Act, RSO 1990, c W.1, deals with garnishment of wages, as defined therein, and stipulates that 80 per cent of a person's net wages are exempt from garnishment. For purposes of the Wages Act, net wages equal gross wages less statutory deductions such as income tax, employment insurance and Canada Pension Plan; only deductions authorized by a statute reduce "gross wages" to "net wages". Other deductions, even if properly authorized in writing by the employee, cannot be used to reduce the amount of gross wages for purposes of the Wages Act restrictions. If the garnishment is for the enforcement of a support order, the Wages Act exempts only 50 per cent of the person's net wages. Nevertheless, the judge issuing the order may use their discretion to decrease the exemption, if the creditor so requests, or increase them, if the debtor so requests. The 50 per cent restriction (with possibility of variation) is also found in the Family Responsibility and Support Arrears Enforcement Act, 1996, SO 1996, c 31.
No specific advice concerning the Wages Act or the Family Responsibility and Support Arrears Enforcement Act, 1996 should be given by an employment standards officer. The Wages Act is administered by the Ministry of the Attorney General, and enquiries concerning it may be directed to Crown Law Office - Civil of that ministry. The Family Responsibility and Support Arrears Enforcement Act, 1996 is administered by the Ministry of Community and Social Services, and enquiries concerning it may be directed to the Family Responsibility Office of that ministry.
Step 4: Did the employer or person acting on behalf of the employer intimidate, dismiss, otherwise penalize or threaten to intimidate, dismiss or otherwise penalize the employee because they engaged in the protected activities listed in paragraph 3?
Sections 74(1)(a) and 74(1)(b) prohibit employers and persons acting on behalf of employers from intimidating, dismissing, or otherwise penalizing employees because the employee engaged in the activities listed in 74(1)(a) or because the employee's wages were subject to garnishment or court order as per s. 74(1)(b). Further, a contravention of s. 74 is established if the employer (or person acting on behalf of the employer) was motivated, even partly, to intimidate, dismiss or otherwise penalize an employee because the employee engaged in one or more of the protected activities listed in s. 74(1)(a) or (b). For example, an employer that terminated the employment of an employee both because of serious absenteeism and because the employee routinely refused to work in excess of 48 hours in a work week could be found to have contravened s. 74.
The use of the word because necessitates a consideration of the employer's motivation in taking the action it has taken against the employee. In the context of the exercise of rights to leave in s. 74(1)(a)(viii) for example, the employee is only protected from intimidation, dismissal or other penalties or threats thereof that are motivated by the rights to a Part XIV leave.
In 384093 Ontario Limited operating as Goodyear Tire Centre v Dietzal (December 18, 1981), ESC 1142 (Hunter), a decision under the former Employment Standards Act, an employee had been dismissed when the president of the employer, after having met with an employee whose wages were the subject of a garnishment order issued against it to discuss his displeasure with the employee's "financial irresponsibility", discovered that the employee had not disclosed to him the existence of two earlier garnishment orders. The employer argued that the employee had been dismissed not because of the garnishment orders per se, but rather, because of the employee's lack of candour in not apprising the president of the previous orders. The referee found that the issuance of the orders was the motivation for dismissal and that the dismissal was accordingly unlawful, as being a breach of the predecessor to the current s 74(1)(b). Commenting on the employer's argument that the employee had a duty to disclose the existence of the earlier orders, the referee suggested that even if there was such a duty on the employee, dismissal because of the issuance of a garnishment order was still unlawful.
Civil action as reprisal
The question arises as to whether a reprisal is committed where an employer commences a civil action against an employee who has filed an employment standards claim with the Ministry of Labour, in response to that claim and in an attempt to recoup any monies the employee has been or may be awarded through the Ministry.
For example, an employer made a deduction from the wages of an employee because the employee damaged the employer's equipment. The employee filed an employment standards claim, and the officer, finding that the deduction was unlawful, ordered the employer to pay the money back to the employee. In response, the employer sues the employee, claiming that the employee was negligent in the handling of the employer's equipment.
When determining whether a reprisal has been committed, consideration must be given to the motivation behind the civil action. For example, an employer may sue an employee because of a desire to punish the employee for having filed a claim - this is likely to constitute a reprisal. Or, an employer may simply be attempting to recover what is rightfully the employer's by law – this is unlikely to constitute a reprisal. The commencement of a civil action will not generally constitute a reprisal, however, circumstances may arise that lead to the opposite conclusion. Officers who are considering finding a reprisal arising from the commencement of a civil action should consult with the Employment Practices Branch prior to making a determination on the issue of a potential reprisal.
It may be necessary for employment standards officers to rely on circumstantial evidence to establish an employer's motivation under s. 74. Accordingly, employment standards officers may have to draw inferences about employer motivation. Whether the requisite intent is established is a factual determination and it will necessarily turn on the circumstances of each case. Note that s. 74(2), subject to s. 122(4), places the burden of proof on the employer in the context of an allegation of reprisal.
Factors that may be relevant to the employment standards officer's determination regarding employer motivation include the following:
- Whether the employer was aware that the employee had engaged in a protected activity under s. 74(1)(a) or the employee's wages were subject to garnishment or court order under s. 74(1)(b).
If the employer was not aware, this step of the test cannot be met. An employer cannot be said to have done something "because" an employee engaged in a protected activity if the employer is not even aware that the employee engaged in it. Note, however, that the mere fact that the employer was aware that the employee had engaged in a protected activity, without more, is not enough to establish a violation.
- The timing of the employer's conduct in relation to when the employer became aware of those activities.
For example, an employee is fired shortly after testifying against an employer at a hearing convened under the Act. However, just because the employer's conduct followed closely on the heels of the employee's protected activity does not necessarily mean that the employer did what it did because the employee engaged in the protected activity. A short interval of time in between the two events may obviously raise suspicions, but that is only one factor.
Conversely, just because a long period of time has elapsed between the employee's protected activity and the employer's action does not necessarily mean that the employer did not take its action because of the employee's activity, as an employer may try to disguise a reprisal by waiting some time before taking any action against the employee.
- Whether the employer has treated the employee differently from other similarly situated employees.
For example, if the employer has been inconsistent, unreasonable or unduly harsh with the employee.
- Compelling business reasons for the employer's conduct.
This includes seasonal business patterns, the finances of the employer, changes in the organizational structure of the employer that do not appear directed at the employee in particular, technological changes, etc. However, just because there may be compelling business reasons does not necessarily mean that a reprisal has not been committed, as there could also be unlawful reasons for the employer's conduct.
Further, if the employer took certain action because the employee exercised their rights, the fact that the action was taken because the employee's exercise of those rights created business problems does not mean that a reprisal did not take place. That is, even if the employer's motivation was not to affect the employee detrimentally, so long as the employer knew or ought to have known that its actions would affect the employee detrimentally, and those actions were taken because the employee exercised their rights, the employer has engaged in a reprisal.
- The credibility of witnesses.
Orders for compensation, reinstatement or hire
Where a contravention of Part XVIII (Reprisal) has occurred, s. 104 empowers an employment standards officer to issue an order requiring that the employee be compensated and/or reinstated. In addition, if an applicant for employment has been reprised against (i.e., not hired) because they refused to take a lie detector test, an order to hire the applicant may be issued.
When is an order for reinstatement appropriate?
An order for reinstatement may be appropriate where the employer has terminated the employee's employment in contravention of s. 74. Reinstatement is considered as a possible remedy in every case where there has been a termination. Where an officer decides that reinstatement is not an appropriate remedy, the narrative should set out the reasons for that decision. When considering whether an order for reinstatement is appropriate in the circumstances, an employment standards officer should consider the following factors:
- Whether the employee wants to be reinstated; and
- Whether there is a reasonable chance that the employee can be successfully re-integrated into the workplace. In this regard, see the Board's considerations when ordering reinstatement in James v Craiglee Nursing Home.
If the employer is opposed to reinstatement, careful consideration of the circumstances should be had before reinstatement is ordered, since the purpose of a reinstatement order is likely to be defeated over the long-term if it is made in spite of the employer's adamant opposition. Nevertheless, there may be cases in which an order for reinstatement is still appropriate, notwithstanding the employer's position.
Similarly, an employee's desire to not be reinstated does not dictate the officer's decision. In some circumstances, it may be appropriate for an officer to issue a reinstatement order even though the employee does not wish to be reinstated. In situations where an officer decides that a reinstatement order is appropriate, but the employee refuses to accept reinstatement, it may be that no compensation is awarded under the head of damages for loss of reasonable expectation of continued employment.
What position should the employee be reinstated to?
It is Program policy that an order for reinstatement under s. 104(1) should require the employer to reinstate the employee to the position that they most recently held, or, if and only if the employee's former position no longer exists, to a comparable position. This policy position is based, by analogy, on the principles behind the reinstatement obligations set out in ESA Part XIV, s. 53(1) following a Part XIV leave.
If an order for reinstatement is made, an employee will be reinstated to the position that they most recently held - if that position still exists. If the job is still there and if the same work is being done, the employee should be reinstated to perform the same work. This is so irrespective of whether another person is now and has been performing the job.
If the position most recently held by the employee no longer exists, the employee may be reinstated to a comparable position. The question of what constitutes a comparable position is a factual matter that will vary with the circumstances of each case. A position with the same wages and benefits is not necessarily comparable - see C.L.C. (Can Workers' Union, Local 354) v American Can Canada Inc., 1983 CanLII 935 (ON LRB). Rather, one must look at a number of factors, including all the aspects of the new, allegedly comparable job that might make it more or less appealing, objectively speaking, in the eyes of an employee in a similar position to that of the claimant, than the claimant's original job.
In making a determination as to what is a comparable position, it is helpful to refer to the factors set out in C.L.C. (Can Workers' Union, Local 354) v American Can Canada Inc., a case dealing with the question of what is comparable work under Part XI Pregnancy and Parental Leave of the former Employment Standards Act. The factors have been adopted by the Program as policy in dealing the question of what is a "comparable position" under the current Act, and are as follows:
1. Location of job
If the position offered by the employer exists in another city or town, the position may or may not be comparable. For example, if commuting would be impossible or would involve a substantial increase in travel time, the position is unlikely to be comparable. In determining whether the position is comparable, the officer should consider the circumstances of the employee in question. The test to be applied is how a reasonable person in the employee's circumstances would view the change. For example, commuting may be possible for an employee with a driver's license, but impossible for an employee without one.
It should also be noted that even if the employment contract permitted the employer to transfer the employee to another city and that therefore (assuming no negative changes in the terms and conditions of employment) the transfer would constitute reasonable alternative employment for the purposes of O Reg 288/01, s. 2(1) para 5, it does not necessarily mean that the obligation to reinstate the employee to a comparable position under this section has been satisfied.
2. Hours of work
Including time of the day and the length of the working day; any shift or weekend work.
3. Quality of working environment
Office vs. warehouse vs. store vs. factory; degree of luxury; overall atmosphere; privacy vs. group surroundings; comfortable vs. spartan conditions.
4. Degree of responsibility
Including the degree of independence and supervision; degree of initiative required; decision-making authority; ability to input own taste or influence; job satisfaction, etc.
5. Job security and possibility of advancement
What was/is the likelihood of the job continuing to exist and the opportunity to progress from that job to a higher position; relationship between the employee's background, training and education and the requirements of the job; what are the skills required for advancement in each position?
6. Prestige and perquisites
Atmosphere and trappings of an executive, including own office, name and title on an organization chart; personal or position profile, such as opportunities for broader contact with other management personnel; own business card, expense account, administrative assistant; signing authority; social privileges; immediate supervision or instruction of others.
The importance and weight to be given to each of the foregoing factors will vary from case to case, depending on the particular facts in each situation. The new position may not be quite as attractive as the old job in all respects, but so long as, all things considered, it is at least as good if not better than the job the employee had before they had their employment terminated, it will be considered comparable. A test of what is comparable is an objective test, based on what a reasonable employee in the same circumstances as those of the employee would think.
In C.L.C. (Can Workers' Union, Local 354) v American Can Canada Inc. the employee claimed that she had not been reinstated to a position involving comparable work following her return from leave. Prior to her leave, the employee had held an executive position as communication co-ordinator. Upon her return from leave she was given alternative work. The alternative work involved mainly clerical tasks. Although she incurred no loss in wages, benefits or seniority, her new position involved a marked decrease in the degree of responsibility, prestige and perquisites as well as a loss in job security. In addition, her working environment, originally in a private office with access to a personal secretary, deteriorated to a secretarial corner. In light of the foregoing, it was found that the new position did not involve work of a comparable nature and compensation/reinstatement was ordered.
A pre-existing job evaluation system purporting to show equality as between two positions may be relevant but is not determinative of the comparability of the two positions. As the referee in Reed Inc. v Nidd (December 23, 1986), ESC 2002 (Mitchnick) stated, the evaluation system may be relevant as an objective factor. However, subjective factors such as humiliation, embarrassment and loss of prestige must be taken into account as well, but from an objective viewpoint. In other words, for example, would a reasonable employee have felt humiliated in the circumstances?
Furthermore, it may not be sufficient merely to offer the same wage where the wage range of the new position is inferior. For example, a new position at $25,000 per year at a $20,000 to $25,000 range may not be considered comparable to the wage of $25,000 at the former position at a range of $24,000 to $29,000.
To illustrate further, in Bronson Bakery Ltd v Melo and Scott neither the somewhat lesser degree of responsibility nor the minor variance of hours of work were sufficient of themselves to render the two jobs incomparable. The significant reductions in prestige and quality of working environment were the determining factors in finding the employer in breach of the reinstatement requirements.
Although there may appear to be a great deal of emphasis on the employee's feelings towards these factors, the test is objective; that is, how would a reasonable employee in the same circumstances have felt?
For example, in C.L.C. (Can Workers' Union, Local 354) v American Can Canada Inc.Referee Picher indicated that the employee found the change of geographical location (from Etobicoke to Brampton) significant, but he felt that there was no substantial difference on that issue alone and particularly so in light of the fact that the new position may have been even closer to her residence. However, he saw that her concerns on the issue of location were in fact more related to quality of working environment and the positions were clearly not comparable in that respect. The matter is more directly dealt with in Bronson Bakery Ltd v Melo and Scott where the employee was reinstated to a retail position as opposed to her previous office position. The employer argued that most people would prefer the open environment of the store and dealing with the public, and thus submitted that most people would have a different subjective preference from the claimant. However, Referee Fraser found that her viewpoint had a reasonable objective basis, i.e., most people would prefer office work to retail. Accordingly, there should be a reasonable objective basis for a subjective viewpoint on the factors considered.
Duty to mitigate
The duty to mitigate losses requires the claimant to take necessary steps to reduce their losses arising from the loss of their job. If an employee neglects to mitigate their loss, the amount of compensation should be reduced. See the sections below for discussion of how the duty to mitigate applies to the different heads of damages.
1. Direct earnings loss
Direct earnings loss, or direct wages loss, measures the loss of wages from the date of the reprisal. This head of damages may be appropriate in the context of an order for compensation or compensation and reinstatement where the employee has been terminated or subject to some form or reprisal resulting in actual earnings loss (e.g., a temporary lay-off or a reduction in hours of work). Damages in respect of a direct earnings loss may also be appropriate in circumstances where an employee suffered a reduction in hours or pay or has been denied the opportunity to earn tips, premium pay or overtime. These damages are subject to a duty to mitigate.
Vacation pay is payable on damages awarded under this head where the damages are for lost "wages" as defined in the Act. Therefore, vacation pay would be payable on the lost overtime pay in the example given in the preceding paragraph, but not on amounts included in the calculation of vacation pay, e.g., tips. For example, where an employee's employment is terminated prior to the commencement of a Part XIV leave, the direct earnings loss would be the wages (plus vacation pay) and any non-wage earnings the employee would have earned between the date of dismissal and the date that the leave should have begun. Employees in such circumstances will also be entitled to any supplementary or top up benefits that the employer would have provided during the leave had the employee's employment not been terminated in contravention of s. 74. Compensation for earnings that would have been earned after the date the employee should have been reinstated is dealt with under heading (2).
For example, if an employer ceased to schedule any hours between 44 and 48 in a week for an employee because they refused to sign an agreement to work more than 48 hours a week, the compensation order could include the overtime pay the employee would have earned between the date the reprisal action commenced and the date such action ceased.
2 (a) Pre-reinstatement compensation
An award is made under this heading only where the employer's reprisal takes the form of a refusal to reinstate an employee after a Part XIV leave and a reinstatement order has been issued. It is intended to compensate the employee for earnings that would have been earned between the date the employee should have been reinstated and the actual date of reinstatement. See for example James v Craiglee Nursing Home, 2004 CanLII 30948 (ON LRB).
Where a reinstatement order is issued in addition to a compensation order, a practical question arises: should the amount of compensation reflect the losses only to the date the reinstatement order is issued, or should it also reflect the reality that some time will elapse after the reinstatement order is issued and before the employee is actually reinstated? Employment standards officers usually inform employers of their intention to issue a reinstatement order, and allow the employer an opportunity to set a realistic date for the reinstatement. If the employer is agreeable to reinstatement and sets a realistic date, the compensation order would reflect the proposed reinstatement date.
If, on the other hand, the employer was not prepared to discuss a date for reinstatement, officers may issue a reinstatement order that is to be effective the date the order is issued, and award compensation calculated as if the reinstatement would take place on that date. If the employer applies to the Ontario Labour Relations Board to review the order, the Board has the authority to adjust the amount of compensation.
The amount of compensation would take into account the employee's duty to mitigate their losses. For instance, where an employee was only able to find a position prior to being properly reinstated, with fewer hours or a lower rate of pay, they should be compensated for the difference between actual earnings and what would have been earned had they been properly reinstated. See James v Craiglee Nursing Home, 2004 CanLII 30948 (ON LRB).
The amount of the award under this head could also be reduced where the employee failed to make efforts to mitigate their damages. In Rainbow Concrete Industries Limited v. Lentir, 2012 CanLII 58233 (ON LRB)the Board found that the claimant did not make reasonable efforts to mitigate his damages because his job search was inadequate. As a result, the Board reduced the amount of pre-reinstatement damages awarded to the claimant.
2 (b) Time required to find a new job and termination notice or pay
An award is made under this heading only where the reprisal has resulted in the employee's termination and no reinstatement order is issued. It is Program policy that an employee is entitled to either:
- Compensation for damages being an amount equal to the employee's weekly earnings (including earnings that are not "wages" within the meaning of ESA Part I, s. 1, such as tips, and including vacation pay on those earnings that are "wages") multiplied by the number of weeks it took or should have taken (whichever is less) the employee to find a new job;
- The employee's termination pay entitlement under the Act with vacation pay (excludes earning that are not wages, e.g., tips and other gratuities),
whichever is greater.
If the award is for damages in respect of time required to find a new job, this amount will be reflected in the compensation order issued under s. 104.
If however, the officer is issuing an order for termination pay, that amount (plus vacation pay on the termination pay) will be reflected in an order to pay wages made under s. 103. Such an order is subject to the limitations on recovery under s. 111.
The calculation of the time it would take to find a job begins with the week in which the employee was either given notice of termination or was terminated without notice. Note that if the employment was terminated during a leave under Part XIV of the Act, the calculation begins with the week in which the leave would have ended.
For example, an employee had three years of employment and, in contravention of s. 74, was fired without notice for refusing to work excess hours. The employment standards officer determined that it should have taken the employee four weeks to find a new job.
Under this heading, the employee would be entitled to an amount equivalent to four weeks of their earnings, including earnings that are not defined as wages under the Act, and including vacation pay on those earnings that are wages as defined in the Act rather than the three weeks of termination pay in lieu of notice to which they would be entitled under ESA Part XV. This amount would be awarded as damages in a compensation order issued under s. 104.
However, if the employment standards officer had determined that it should have taken the employee only two weeks to find a new job, the officer would instead award the three weeks' termination pay in lieu of notice to which the employee would be entitled under ESA Part XV. This amount would be ordered under s. 103 as unpaid wages.
While the amount assessed under this heading is not limited to an amount that would be awarded in respect of "reasonable notice" by the courts under the common law, any amount received by the employee with respect to their common law notice rights would be deducted from the amount calculated under this head. However, if the amount received under the common law notice rights exceeded the amount calculated under this heading, the excess will not reduce the amounts assessed under other headings. This raises an issue about the general prohibition against employees engaging in duplicative proceedings. An employee is not prohibited from both suing for wrongful dismissal in the courts and filing a reprisal claim with the Employment Standards Program. This is because the s. 97(2) prohibition on duplicative proceedings does not apply to, among other types of claims, reprisal claims. See ESA Part XXII s. 97(2) for a full explanation of this principle.
3. Expenses Incurred in seeking new employment
This head of damages is only considered if the employee's employment is terminated and no reinstatement order is issued. Expenses incurred in seeking new employment include transportation costs in travelling to interviews and any other reasonable expenses; claimants should be advised to keep receipts. Any expenses that would have been incurred even if the employee had not been terminated are not included. For example, if the employee had childcare expenses during the period they were looking for another job, but would have incurred the same day care costs if they had remained at work, these costs will not be included in the order.
4. Loss of employee's reasonable expectation of continued employment with the former employer
This head of damages is commonly referred to as compensation for loss of the job itself. Where reinstatement is not ordered because it is not possible, realistic or appropriate, damages may be awarded for the loss of reasonable expectation of employment. They compensate for the loss of the opportunity to continue to be employed, an opportunity that the employer’s wrongful act denied. These damages are prospective in nature, meaning it is necessary to assign a value to future unknown events. They are not subject to a duty to mitigate.
The concept behind this head of damages was set out in Wyeth-Ayerst Canada Inc. v Dowd (January 7, 1998), 2466-96-ES (ON LRB):
Adjudicators have generally awarded one month per year of service under this head of damages. See Rainbow Concrete Industries Limited v. Lentir, 2012 CanLII 58233 (ON LRB). However, it is Program policy that the following factors are considered when determining damages for loss of job:
- Economic health of the employer in particular, and the economic health of the industry in general;
- Whether the employee’s position was secure or insecure to begin with;
- Whether the employee intended to stay with the company for a long time; and
- If the employee found a new job, and if that job pays more or less or is more or less secure than the previous job.
Other specific factors to look at include the economic health of the industry or the particular employer. If it seemed likely that the claimant's job was not secure to begin with (either because the employer was in financial difficulties or because the claimant did not plan to stay with the employer for long), then the loss of expectation of continued employment would not be significant.
Where an officer feels that a reinstatement order is appropriate but the employee nevertheless refuses to accept reinstatement, then it may be that no compensation should be awarded under this head of damages.
One issue that has arisen is whether a reinstatement order is appropriate where an employee was unlawfully terminated, then found a better job and, primarily because of the better job, does not want to be reinstated to the former job. Is a reinstatement order appropriate in these circumstances such that if the employee refuses reinstatement they should be disentitled to damages under this heading? It is Program policy that where the employee's reason for not wanting to be reinstated is because they found a better job, the employee is acting reasonably, a reinstatement order may not be appropriate, and the employee therefore should be entitled to damages under this heading in these circumstances. To entirely disentitle an employee to damages under this head in these circumstances would reward an employer who has unlawfully dismissed an employee because the employee was effectively forced to find a new job as a result of the employer's unlawful act.
Further, if employees in these circumstances were to lose out on damages under this heading, the point of having this head of damages - the desirability of compensating employees for having been wrongfully deprived of a job to which, by law, they were entitled - would be defeated. However, if the claimant has found another job, the nature of this job should be considered. If it is a better one, pays more and is more secure, then this fact should be considered in assessing the amount. In other words, while the fact that the employee ended up in some ways better off does not mean that nothing should be assessed under this head, it may result in a smaller amount being assessed than would have been the case had they ended up worse off or neither better nor worse off.
In Kingston Independent Nylon Workers Union v Page, a decision under the current Act, the Board noted that in mitigating her damages, the employee had actually found a better job than the one she had with her former employer. As a result, the Board held that the employee needed no compensation for "loss of the job". It assessed $0 under that heading, although the Board did increase the award under the heading "time required to find a new job" to take into account the actual amount of time it took her to find the job.
Also see the following cases decided under the former Act with respect to compensation for loss of reasonable expectation of continued employment or "loss of the job":
- Royce v Huan and Danczkay Properties Inc. (July 12, 1995), ESC 95-136 (Novick)
- Martel v 785364 Ontario Inc. o/a Sunny's Restaurant (June 9, 1995), ESC 95-109 (Novick)
- Douglass-Taylor v Amaka Dental Services (December 4, 1995), ESC 95-225 (Faubert)
- Goulet v Uniglobe Tri-Pro Travel Ltd. (June 16, 1995), ESC 95-115 (Palumbo)
- Spinnaker Industries Inc. v Hoveling (January 22, 1996), ESC 96-12 (Bradbury)
- Wildlife Habitat Canada (Ontario Corporation #588482) v Savard (May 10, 1996), ES 96-101 (Novick)
5. Emotional pain and suffering
This head of damages is intended to compensate for such things as the humiliation and real hurt suffered by a person terminated in violation of the ESA 2000. This head may be considered in all circumstances in which a breach of s. 74 is alleged. Together with compensation for the loss of the reasonable expectation of continued employment, this head of damages is one of the most difficult to quantify. This head of damages is not subject to the duty to mitigate.
Some type of evidence is necessary to support an award of compensation for emotional or mental pain and suffering. In many cases, oral evidence from the employee attesting to their emotional pain and suffering will be adequate to support an award under this heading. In cases where a higher amount of damages is awarded under this heading, evidence in addition to the oral evidence, such as a medical report, may be necessary to support the higher award.
In Rainbow Concrete v Lentir,the claimant provided evidence that he experienced a great deal of emotional pain and suffering as a result of the reprisal, but did not provide any medical evidence. The Board noted that the loss of long-term employment by a functionally illiterate individual with few marketable skills as a result of a baseless allegation of theft presumably gave rise to pain and suffering. The claimant gave evidence that he was extremely depressed, seeking treatment for mental health difficulties and experienced financial difficulties after being terminated, including losing his house and declaring bankruptcy. The Board stated that ordinarily this evidence would give rise to damages in excess of $3000 but this case was complicated because as the claimant was experiencing other problems that may have been factors in his pain and suffering. The Board found that in the absence of medical evidence to distinguish between the causes of the claimant’s distress, it was appropriate to simply affirm the ESO’s award of $3000 for pain and suffering.
Any consequential physical suffering caused by the emotional pain and suffering should also be considered when making an assessment under this heading. A claimant asserting that they experienced consequential physical suffering should provide some substantiation, such as a medical report.
In Melanie Lamoureaux v. JYSK Linen N Furniture Inc., 2015 CanLII 78257 (ON LRB),the Board awarded $5000 in damages for emotional distress. The Board found that the employer enhanced the employee’s distress when it did not inform her that her job had been eliminated when she sought to return to work. The employer’s attempt to give the employee the “run around” while it attempted to find her another job exacerbated the harm caused to the employee.
In 169809 Canada Limited o/a Portrait Impressions of Canada (April 16, 1993), ES 93-65 (Alter)the referee awarded 20 per cent of the total compensation awarded for lost wages, car allowance, vacation pay and loss of continued employment, which netted out at $4,942, for emotional pain and suffering. The referee did not refer to any specific facts in support of this amount. In the Program's view, using a percentage formula is not appropriate. On judicial review, the Divisional Court in 169809 Canada Limited o/a Portrait Impressions of Canada, Re, 1995 CanLII 10685 (ON SC)quashed that part of the referee's decision, indicating that an arbitrary percentage formula was not appropriate, and that there should be some evidence before the referee to support an award for mental pain and suffering.
6. Severance pay
An award under this heading is considered only if the employee's employment has been severed and the employee will not be ordered reinstated. Severance pay will only be awarded if the employee would qualify for severance pay pursuant to ESA Part XV, s. 64. See for example Rainbow Concrete Industries Limited v Lentir, 2012 CanLII 58233 (ON LRB).This entitlement will be reflected in a s. 103 order for unpaid wages rather than an order for compensation under s. 104. The order made in respect of severance pay is subject to the limitations on recovery under s. 111.
7. Benefit plan entitlements
If an employer has reprised against an employee by discontinuing their participation in a benefit plan, a compensation order could be issued to compensate the employee for any expenses incurred due to the wrongful discontinuance of the plan. Note that in such a case, a compliance order could also be issued, requiring the employer to reinstate the employee's coverage - assuming that reinstatement of coverage is possible in the circumstances. Note as well that if an applicant for employment was reprised against because of their refusal to take a lie detector test (i.e., the employer refused to hire the applicant because they refused a lie detector test), the employment standards officer could issue an order for compensation for any expenses the applicant incurred that would otherwise have been covered by a benefit plan had the employee been hired in addition to an order to hire the employee - see ESA Part XVI, Lie Detectors.
If an employee was terminated contrary to s. 74 and subsequently reinstated, the employee would be entitled to compensation for the benefit plan coverage they would have had between the date of the termination and the date of reinstatement.
An employee whose employment was terminated contrary to s. 74 and in respect of whom a compensation order was made (but no order for reinstatement) would be entitled to compensation for the benefit plan coverage from the date of termination to the earlier of the date the employee found alternative employment or ought to have found alternative employment.
8. Reasonable foreseeable damages
The heads of damages described under headings (1) to (7) above do not constitute an exhaustive list of damages that can be awarded in a compensation order. While they are the usual or most likely categories of award that are assessed, there may be other types of damages that flow directly from a contravention of s. 74 that are reasonable and foreseeable for which it would be appropriate to make an award for damages.
For example, consider the case of a pregnant employee whose employment was unlawfully terminated, in that the termination occurred because she was planning on taking a pregnancy and parental leave. At the time of the termination, the employee had not worked long enough to qualify for maternity and parental benefits under the Employment Insurance Act, although she would have qualified by the date she had planned on beginning her leave. The officer could order an amount under this head of damages that represents the Employment Insurance benefits the employee would have received had she worked long enough to qualify for them.
Method of calculating an order
- Add up all of the employee's losses under items 1 through 8 above. Note that any amounts under items 1, 2(a), 3 - 5, 7 and 8 are assessed as compensation under s. 104 and any amounts under item 2(b) and item 6 are assessed separately as unpaid wages under s. 103.
- Subtract any sums already received by the employee on account of any of items 1 through 8 above.
- Note that money received in respect of common law rights to reasonable notice that exceed the amount that would be awarded pursuant to program policy under item 2(b) are subtracted only from that item 2(b) (whether as compensation for time required to find a new job or termination pay in lieu of notice) and not from any other items.
- Note also that the quantum of an order issued to compensate an employee for an unlawful termination is not reduced by any employment insurance benefits paid to the employee (see Bronson Bakery Ltd v Melo and Scott) recovery of any overpayment with respect to these benefits is the concern of the Canada Employment Insurance Commission, not the Ministry of Labour.
- Add the greater of $100 or 10 per cent of the amount of the s. 104 order to that order and the greater of $100 or 10 percent to the amount assessed under the s. 103 order (if any) as administration costs.
There are two limitation periods that apply with respect to an employee's ability to obtain a remedy under the Act:
1. Section 111
This provision limits an employee's ability to recover wages to those that became due within specified periods preceding the date the complaint was filed. Any wages (including vacation pay) that come due on or after that date are recoverable if an employee files a claim for such wages within two years of the date the wages came due.
On February 20, 2015, the Stronger Workplaces for a Stronger Economy Act introduced a number of transitional provisions that imposed a six-month limitation period on unpaid wages that became due before February 20, 2015, and a 12-month limitation period for repeated contraventions and vacation pay that became due before February 20, 2015. Sections 111(3.1) to (8) were repealed on February 20, 2017 in accordance with s. 8(6) of Schedule 2 to the Stronger Workplaces for a Stronger Economy Act, 2014.
Although these sections are now repealed, it is Program policy that the limitation periods imposed by the transitional provisions continue to apply to wages, repeated contraventions and vacation pay that became due before February 20, 2015, even if any associated orders are issued after February 20, 2017. This is to preserve the vested legal rights of the parties at the time the contravention occurred. This is relevant in situations where a period of time lapses between the time a claim is filed and the time a claim is investigated. For more information, see ESA Part XXII, s. 111.
2. Section 96(3)
This provision imposes a two-year limitation period on filing a complaint by stating that a complaint filed more than two years after a contravention has occurred is deemed not to have been filed. Note that there will often be a period of time in between the date an employee engaged in a protected activity and the date the employer imposed a penalty. It is this latter date on which the contravention occurs. The two-year time limit starts to run only once a reprisal has actually been committed, i.e., from the date the employer imposed the penalty.
For example, an employee working for Employer A asserted her right to meal breaks in early 2014. In mid-2014, she resigned to work for Employer B and then in September 2017 applied for a job with Employer C. Employer A was contacted for a reference on September 6, 2017 and gave a negative reference because the employee had asserted her rights to meal breaks while she worked for Employer A. The reprisal occurred on September 6, 2017 and the two-year time limit in s. 96(3) begins to run from that date. The employee will therefore have until September 5, 2019 to file a reprisal claim. For practical purposes, the impact of this provision is limited to complaints in which reinstatement and/or compensation is sought as a remedy. See ESA Part XXII, s. 96(3) for more information.
3. Application of limitation periods
As a result of these two provisions:
- Compensation for damages flowing from a violation of s. 74 will be recoverable so long as the employee files a claim within two years of the contravention. Compensation includes the heads of damages itemized above, i.e., direct earnings loss, time required to find a new job, expenses incurred in seeking new employment, loss of job, emotional pain and suffering, and other reasonable foreseeable expenses.
- Reinstatement of an employee whose employment was terminated in violation of s. 74 is possible so long as the employee files a claim within two years of the contravention.
- Any unpaid wages (including vacation pay) that came due on or after February 20, 2015 are recoverable, so long as the employee files a claim within two years of the date the wages came due.
An employee who commenced pregnancy leave August 1, 2016 was scheduled to return to work on August 1, 2017. The employee was due for a length-of-service-driven pay increase on July 1, 2017, but was on her unpaid leave at that time. The employer unlawfully reprises against the employee by refusing to give the increase upon the employee's return because she was on leave for a year, and advises her that she will not get a pay increase until July 1, 2018. The employee files a claim on March 1, 2018.
The officer determines that the employee was entitled to the pay increase effective July 1, 2017, and that regular pay days on or after August 1, 2017, when she returned to work, should have reflected the increase. Because the employee had worked from August 1, 2017, to the date the claim was filed, the employer should have been paying the employee the higher wage rate and so far as the Act is concerned her pay between August 1, 2017, and March 1, 2018, should have reflected that. The employee thus had unpaid wages between those dates equal to the difference between what she should have been paid and what she was paid.
In this case, all of the unpaid wages came due within the two-year period prior to the date the claim was filed and so all are recoverable under the Act.
Onus of proof - s. 74(2)
74(2) Subject to subsection 122(4), in any proceeding under this Act, the burden of proof that an employer did not contravene a provision set out in this section lies upon the employer.
Subject to s. 122(4), this provision places the legal burden of proof on the employer in any complaint alleging that the employer or a person acting on behalf of the employer has committed a reprisal contrary to s. 74. The effect of this provision is to require the employer to rebut an employee's claim that they have been reprised against. The employer must establish, on a balance of probabilities, that the employer did not contravene s. 74.
In the Board's decision in Daitch v Respironics Georgia, Inc., 2004 CanLII 12176 (ON LRB) the claimant sought damages on the basis that his employment was terminated as a reprisal for exercising his right under the Act to refuse to work on a public holiday. The only evidence before the Ontario Labour Relations Board was that of the claimant and this evidence disclosed that he had been employed by the company, had exercised his right to take the a public holiday as a day off (directly challenging his employer's direction to work that day) and was terminated three months later for reasons the Board described as "vague". The Board concluded that the employer had thereby failed to discharge the statutory burden of proof to show the termination was not a reprisal under s. 74.
In Bari v. 973864 Ontario Inc. o/a the Hosiery Shop, 2004 CanLII 5733 (ON LRB), the Board found that the employer had not discharged the onus to justify a significant reduction in the pregnant employee's hours and ultimate dismissal, despite its claim that declining revenues were the motivating factor for its actions.
But see also D-Zign Interior Planning & Project Management Inc. v. Madariaga, 2006 CanLII 6003 (ON LRB) where the Board found that the employer had discharged the onus in s. 74(2) of establishing that that the decision to terminate the claimant was in no way connected to her pregnancy or eligibility or intention to take a leave under Part XIV of the Act.
Section 74(2) is subject to s. 122(4), which provides:
Section 122(4) states that in a hearing before the Board arising from a review of a notice of contravention, the Director has the burden of proof. Therefore, if a notice of contravention has been issued with respect to a contravention of s. 74 and the person against whom the notice was issued files an application for review of the notice, the onus shifts to the Director of Employment Standards to show, on a balance of probabilities, that the employer contravened s. 74. For a more detailed discussion of s. 122(4), see ESA Part XXIII, s. 122.