The Employment Standards Act
As you probably already know, employment standards in Ontario are enforced under the Employment Standards Act, 2000 (the “ESA”). The ESA sets out the minimum standards that employers and employees must follow. Some of these standards include the maximum number of hours an employee can work (see: Section 17), eating periods (see: Section 20) overtime pay (see: Section 22), vacation pay (see: Section 33), termination of employment (see: Section 54), etc.
Generally, most people’s knowledge of the ESA is limited to what the minimum standards are. However, the ESA is a very long and comprehensive piece of legislation. In fact, the ESA is 142 sections long and even contains mechanisms for punishing employers who breach the provisions of the ESA.
One often overlooked provision of the ESA is Section 74, known as the “Reprisal” section.
What is a “Reprisal”?
Section 74 of the ESA prohibits reprisals. The exact wording of section 74 is reproduced below, but a very simple, and general, way to explain a reprisal is to say that a reprisal occurs when an employer acts against an employee because the employee asserted a right granted to the employee by the ESA.
74. (1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,
(a) because the employee,
(i) asks the employer to comply with this Act and the regulations,
(ii) makes inquiries about his or her rights under this Act,
(iii) files a complaint with the Ministry under this Act,
(iv) exercises or attempts to exercise a right under this Act,
(v) gives information to an employment standards officer,
(vi) testifies or is required to testify or otherwise participates or is going to participate in a proceeding under this Act,
(vii) participates in proceedings respecting a by-law or proposed by-law under section 4 of the Retail Business Holidays Act,
(viii) is or will become eligible to take a leave, intends to take a leave or takes a leave under Part XIV; or
(b) because the employer is or may be required, because of a court order or garnishment, to pay to a third party an amount owing by the employer to the employee.
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.
How Does the Reprisal Section Work in Practice?
If an employee believes that they are a victim of a reprisal (which is a contravention of the ESA) then the employee can file a complaint with the Ministry of Labour (see: Section 96). From there, the Ministry will carry out an investigation, which can lead to an Order against the employer for compensation to the employee and/or reinstatement of the employee’s employment (if the reprisal included termination of the employee’s employment). Specifically, Section 104 of the ESA states:
“If an employment standards officer finds a contravention of any of the following Parts [which includes reprisals under Part XVIII] with respect to an employee, the officer may order that the employee be compensated for any loss he or she incurred as a result of the contravention or that he or she be reinstated or that he or she be both compensated and reinstated.”
A breach of the ESA can also lead to a charge against the employer under the Provincial Offences Act which is prosecuted through the Provincial Offences Act Courts (like a traffic ticket). A conviction in this context can cause an individual to be fined up to $50,000 and/or imprisoned for up to 12 months whereas a corporation can be fined up to $100,000 for a first offence. If the corporation has been convicted previously, the fines start at $250,000 or $500,000 depending on the number of prior convictions (see: Section 132).
The Moral of the Reprisal Story
What is the moral of the reprisal story? First, be aware that the prohibition against reprisals exists. Second, understand the consequences to an employer for carrying out a reprisal. Third, speak to your lawyer before taking any action against an employee which is (or could appear to be) a reprisal in nature.
