Dismissing employee who recently made a complaint

Question: If an employer wants to dismiss an employee without cause but the employee has recently made a harassment or safety complaint, what can it do to avoid an allegation that the dismissal is a reprisal? Should it wait until a certain amount of time has elapsed?

Answer: There is no easy answer. Some employers will wait until the complaint is resolved before terminating employment; others will press on with a non-cause dismissal and perhaps be a little more generous with respect to reasonable notice compensation and insist on a full release.

Ideally, the employees’ non-cause dismissal is arising out of a long-planned organizational change which effects many employees, not just the complainant!

Retaliation for filing a complaint is illegal. Many statutes provide for reverse onus, whereby the employer has to establish that the dismissal did not arise out of the complaint. For example, the Ontario Occupational Health and Safety Act provides that “the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (1) lies upon the employer or the person acting on behalf of the employer.” Other provinces such as Nova Scotia, British Columbia, Manitoba, Saskatchewan, Newfoundland and Labrador, and the federal government all have similar provisions which places the burden of proof on the employer.

Obviously, satisfying that onus is much easier if the termination was for cause. In a non-cause situation it is difficult, but well documented concerns about the circumstances giving rise to the termination that pre-date the filing of the complaint are of considerable assistance.

Negative inferences may be drawn from the timing of events. In Walsh v. Mobil Oil Canada, the Alberta Court of Appeal dealt with the issue of retaliation in a human rights complaint. In making a finding of retaliation, the court reiterated that negative inference may be drawn if, for example, the performance evaluation of an employee suddenly changes following a complaint. Employers must be careful not to give a perception of retaliation post-complaint.

Care should be exercised when making decisions concerning a complainant. In most instances, the onus of proof will be on the employer to demonstrate that retaliation did not occur. To counter a retaliation claim, careful documentation is required.

For more information see:

• Walsh v. Mobil Oil Canada, 2008 CarswellAlta 1168 (Alta. C.A.).