Firing an employee after reporting workplace harassment in Ontario is legally permitted only in narrow circumstances where the complaint plays no role in the employer’s decision. If an employee is fired after reporting workplace harassment in Ontario and the complaint is connected in any way to the termination, it may amount to unlawful reprisal under the Occupational Health and Safety Act (“OHSA”).
The Ontario legal framework draws a clear distinction between legitimate performance or restructuring decisions and actions that penalize an employee for exercising workplace rights. Once a harassment complaint is made, any adverse treatment that follows is closely scrutinized to determine whether it was motivated, even in part, by the complaint itself.
A recent decision of the Ontario Labour Relations Board (the “Board”), Braganza v. Randstad Canada, highlights the significant risks employers face when an employee experiences adverse treatment after raising workplace concerns. The case serves as a reminder that employees who exercise their statutory rights are protected from retaliation, and that reprisal findings can result in substantial liability for employers.
TL;DR:
Employees in Ontario are protected from retaliation after reporting workplace harassment or safety concerns. In Braganza v. Randstad Canada, the Ontario Labour Relations Board found that an employer failed to prove a termination was unrelated to a harassment complaint, resulting in nearly $195,000 in compensation. The decision is a reminder that poorly documented or inconsistent reasons for dismissal after a workplace complaint can expose employers to significant reprisal liability under Ontario’s OHSA.
Can an employer terminate an employee after they report workplace harassment?
Technically yes, but only if the decision has nothing to do with the employee’s complaint. If the complaint plays any role in the employer’s decision to terminate, the employer may face liability for reprisal under Ontario’s Occupational Health and Safety Act.
What is workplace reprisal under Ontario Law?
Section 50 of OHSA prohibits employers from penalizing employees for exercising rights under the Act.
This includes:
- Reporting workplace harassment
- Participating in investigations
- Raising health and safety concerns
- Seeking enforcement of workplace protections
A reprisal can take many forms, including:
- Discipline
- Demotion
- Reduction of responsibilities
- Termination
Why are reprisal claims so difficult for employers?
One feature that makes reprisal claims particularly challenging for employers is that the burden of proof is reversed. Once an employee shows:
- That they exercised a protected workplace right, and
- That they later suffered a negative consequence
The burden shifts to the employer to prove that the two were unrelated.
What remedies can the Ontario Labour Relations Board award?
The Ontario Labour Relations Board has broad powers to remedy violations of OHSA.
Potential remedies include:
- Ordering reinstatement
- Compensation for lost wages and benefits
- Other remedies necessary to address the harm suffered by the employee
As employers occasionally discover, retaliation claims can become extremely expensive.
What Happened in the Braganza v. Randstad Case?
In Braganza v. Randstad Canada, the employee filed a workplace harassment complaint after witnessing inappropriate conduct involving co-workers at company events.
The employer accepted that the complaint constituted an exercise of rights protected by OHSA.
Following the complaint:
- The employee expressed concerns about potential retaliation
- Requested a transfer
- Experienced significant changes to her role
- Her reporting structure changed
- Her client portfolio was substantially reduced
- Several individuals connected to the underlying events were promoted into positions of authority
Shortly after, her employment was terminated.
The employer maintained that the termination resulted from restructuring and performance concerns. The Board, however, found several problems with that explanation.
What hurt the employer’s case?
The Board concluded that the employer failed to prove that the termination was not motivated by the employee’s harassment complaint.
Several factors influenced that finding:
- The employer’s explanation for the termination shifted over time. The employee was initially told her position was being eliminated because of restructuring, but performance concerns later became a significant part of the employer’s defence.
- The Board found little contemporaneous documentation supporting the alleged performance issues. There were no formal performance improvement plans, written warnings, or other records that would typically be expected if performance was truly the reason for dismissal.
- The Board was troubled by evidence that individuals who had been implicated in, or connected to, the workplace harassment complaint later occupied positions that allowed them to influence decisions affecting the employee who filed the complaint.
Taken together, these factors undermined the employer’s position and prevented it from meeting its burden of proving that the termination was free from retaliatory motive.
Reprisal findings can be costly for employers
The consequences of a reprisal finding can be significant.
In Braganza, the OLRB ultimately ordered the employer to pay approximately $195,000 in compensation after finding that the employee’s termination was a reprisal for filing a workplace harassment complaint.
The award included:
- Compensation for lost income
- Damages for injury to dignity
- Compensation for mental distress.
What should employers learn from this decision?
Employers who take adverse action against an employee after a complaint has been made should ensure:
- That their reason is legitimate
- Their reasons are well-documented and consistent
- Supported by evidence
When timing, circumstances, and evidence raise questions about motive, tribunals are often prepared to scrutinize the employer’s conduct very closely.
Key Takeaway
Employees in Ontario have the right to report workplace harassment and other workplace concerns without fear of retaliation.
The Braganza decision demonstrates that when the timing, circumstances, and evidence raise questions about an employer’s motives, the consequences can be costly.
Frequently Asked Questions
Can you be fired for reporting workplace harassment in Ontario?
An employer can terminate an employee after a harassment complaint only if the complaint played no role in the decision. Otherwise, it may constitute unlawful reprisal under OHSA.
What is workplace reprisal in Ontario?
Workplace reprisal occurs when an employer penalizes an employee for exercising legal workplace rights, such as reporting harassment or safety concerns.
What happens if an employer retaliates after a harassment complaint?
An employer may face liability before the Ontario Labour Relations Board, including compensation for lost wages, mental distress, and injury to dignity.
Who has the burden of proof in OHSA reprisal claims?
Once an employee shows they exercised a protected right and suffered negative treatment, the employer must prove the two were unrelated.
Can employees sue for retaliation after reporting harassment?
Employees may bring reprisal applications under OHSA and, depending on the circumstances, may also have additional legal claims.
What damages can be awarded in reprisal cases?
Remedies can include reinstatement, lost wages, damages for mental distress, and compensation for injury to dignity.
What made the employer lose in Braganza v. Randstad?
The Board found the employer’s explanations inconsistent, poorly documented, and influenced by individuals connected to the harassment complaint.
Featured Snippet Summary
Can employers fire employees for reporting workplace harassment?
Only if the complaint played no role in the termination decision. Under Ontario law, employees are protected from reprisal for reporting workplace harassment or exercising workplace safety rights.
Why contact Whitten & Lublin employment lawyers?
If you believe you were terminated, demoted, or treated unfairly after reporting workplace harassment or raising a workplace concern, you may have a reprisal or wrongful dismissal claim under Ontario law. Contact Whitten & Lublin to speak with an experienced employment lawyer who can assess your situation and explain your options.
Call 416 640 2667 or contact us online.
