Part VI: Reprisals by the employer prohibited
The Occupational Health and Safety Act (OHSA) prohibits employers from penalizing workers in reprisal for obeying the law or exercising their rights.
Under section 50 of the OHSA, an employer cannot
- dismiss (or threaten to dismiss) a worker
- discipline or suspend a worker (or threaten to do so)
- impose (or threaten to impose) any penalty upon a worker, or
- intimidate or coerce a worker…
because a worker has
- followed the OHSA and regulations
- exercised rights under the OHSA, including the right to refuse unsafe work
- asked the employer to follow the OHSA and regulations.
A worker also cannot be penalized for
- providing information to a Ministry of Labour, Immigration, Training and Skills Development inspector
- following a Ministry of Labour, Immigration, Training and Skills Development inspector’s order, or
- testifying at a hearing about OHSA enforcement
- in court
- before the Ontario Labour Relations Board
- before the Human Rights Tribunal of Ontario or similar organization
- at a coroner’s inquest
- at a grievance arbitration, and
- in certain other hearings.
A worker who believes that the employer has reprised against him or her may file a complaint with the Ontario Labour Relations Board (OLRB). A unionized worker may choose to ask the union to file a grievance under the collective agreement or to seek its help in filing a complaint directly on the worker’s behalf with the OLRB.
Alternatively, a worker claiming to have been fired in an OHSA-related reprisal may consent to having a Ministry of Labour inspector refer the reprisal allegation to the OLRB, if
- the allegation has not already been dealt with by arbitration, and
- the worker has not filed a complaint to the OLRB.
The inspector will also provide copies of the referral to the employer, trade union (if any) and other organizations affected by the alleged reprisal. However, the Ministry of Labour will not act as the worker’s representative.
The Ministry of Labour, Immigration, Training and Skills Development will also investigate the health and safety concerns related to a reprisal complaint or referral.
The OLRB can look into a worker’s complaint or a referral from the Ministry of Labour, Immigration, Training and Skills Development and try to mediate a settlement between the workplace parties. If a settlement cannot be reached, the OLRB may hold a consultation or hearing. The OLRB may make orders to
- remove or change any penalty the employer may have imposed
- reinstate/rehire the worker, and/or
- compensate the worker for related losses.
The OLRB will provide forms for filing reprisal complaints.
The Office of the Worker Adviser (OWA) or the Toronto Workers’ Health & Safety Legal Clinic can provide workers with free advice on filing complaints and representation at mediations and hearings before the OLRB.
If there is an allegation of reprisal before the OLRB, it’s up to the employer to refute it. The Office of the Employer Adviser (OEA) can provide free assistance and representation at mediations and hearings before the OLRB to employers with fewer than 50 employees. Also, employers can contact the Law Society of Upper Canada, which will put them in touch with a lawyer who may provide a free initial consultation.
For information resources related to reprisals refer to Appendix C.