City of Moose Jaw case highlights how post-complaint decisions can look like punishment
When an employee files a harassment complaint, the legal standard on reprisal is clear – but the way employers respond in the days and weeks that follow can make or break a subsequent retaliation case.
Drawing on a recent Saskatchewan Labour Relations Board decision and insights from two employment lawyers, the picture that emerges is stark: there is little room for missteps once a worker comes forward.
“It’s not a very fine line. I would call it a bright red line,” says Joe Oppenheim, an employment lawyer at Carbert Waite in Calgary.
“If an employee proceeds with any kind of a complaint for safety or is holding the employer to account to meet its safety obligations … the employer is strictly prohibited from any kind of reprisal.”
He goes on to explain that the way tribunals assess employer retaliation is straightforward, with at the base of it the question of what was most likely the motivation for certain actions, based on the facts.
“The employer is obligated to put their best foot forward with respect to their evidence, and to explain themselves and to have witnesses who've got firsthand information about what happened,” Oppenheim says.
“If the employer fails to do that, chances are the tribunal is going to side with the employee.”
Safety first – and account for an optics problem
A recent Saskatchewan Labour Relations Board (SLRB) ruling, City of Moose Jaw v Wenarchuk, offers an illustration of how quickly a harassment and psychological safety dispute can be reframed in legal terms.
In that case, a long serving municipal worker alleged that a harassment complaint led to a series of “retaliatory and procedurally improper” actions by HR, including a sudden change to a written accommodation agreement, job reassignment with reduced pay and hours and alleged privacy breaches around her medical information.
Oppenheimer says as a starting point employers need to remember their top priority for employees, which is to provide a safe workplace – the principle which he says can be the guidepost when deciding post-complaint actions.
“You have to not lose track of your obligations to keep a safe and respectful workplace for employees” he says.
“If you lose track of that, or if you minimize that or don’t prioritize that, that’s where you get into trouble as an employer.”
Employers must be clear on motive
The Moose Jaw case shows how quickly those optics can sour. The worker’s complaint described a “series of adverse actions” following her harassment report, including a surprise “accommodation” meeting run by the HR director, a job reassignment she described as “isolation and humiliation” and “expectation” letters she found threatening in tone.
Oppenheim stresses that motivations behind such actions will be scrutinized in arbitration and court proceedings, which is why employers need to be clear from the outset about what’s driving behaviour.
“It’s all about motive,” he says.
“If you’re treating an employee unfairly, and if you’re issuing something like that where there’s no objective basis for it and you wouldn’t otherwise issue it, then you’ve crossed the line.”
Investigations: moving quickly, staying respectful
As Sarah Hentschel of Watson Goebel in Vancouver explains, there are so many mistakes employers can make after receiving a harassment or psychological safety complaint, that it’s easier to talk about what they should do.
“They should investigate the complaint as quickly and objectively as possible,” Hentschel says.
“They should not prejudge the complaint and should be respectful throughout and require all involved to be respectful throughout. They should maintain the privacy of the complainant during the process as much as is possible. They should make a decision as quickly as possible, after ensuring all angles have been properly and objectively investigated.”
Oppenheim adds that tribunals will look closely at each step an employer takes after a complaint, and whether there is a coherent explanation for each step. They will also examine the tone, the timing, and the level of support offered from the employers – all of which will help determine what remedy will be recommended.
“There’s been cases where it’s been a slap on the wrist, effectively, where employers have been ordered to stop the retaliation and implement a new anti-discrimination policy, or to get training from a third party,” he says.
“There’s also lots of cases where the victim has been awarded real monetary compensation. The bottom line is, if the employee establishes that there was a real reprisal or retaliation against them, there’s real consequences for the employer.”
Managing day-to-day decisions that look like retaliation
The decisions most likely to create retaliation optics are not always the obvious ones. Hentschel points to subtle shifts in how work is assigned and how colleagues interact.
“It is usually the less obvious things that can be open to interpretation by either side, which can be viewed as retaliation,” she says.
“These include the employee suddenly fielding less requests for work, or not getting plum assignments, being left out of meetings or important conversations and generally isolated in the lunchroom or at firm functions.”
Oppenheim sees similar patterns when supervisors remain in place after a complaint, pointing out that circumstance as a particularly risky choice, post-complaint – even if the original complaint wasn’t determined to be founded.
“The practical tip is you need to remove that employee out of the supervisory chain of command, if her supervisor, his supervisor, is part of the complaint,” he says.
“Objectively the optics of it aren’t good … if [the employee] then files the complaint for retaliation, the first question that the tribunal is going to ask and try to understand is, ‘Why … do you have the same supervisor, who was found to have been harassing this employee earlier?”
Handling medical and mental health information
In the Moose Jaw case, the worker alleged that a written accommodation agreement was “unilaterally” changed in a meeting led by HR, without medical justification or consultation.
Hentschel says the “single biggest mistake” employers make during psychological safety and other mental health-related claims is failing to explain why they are requesting information, and what they’re going to do with it.
“Ideally, the employer is having a call or an in-person meeting to deliver these documents so that the employee has an opportunity to fully understand every step of the process and ask any questions,” she says.
“In many jurisdictions, employers are not necessarily required to pay the doctor’s fee for completing the form, but it provides … mileage for the employer later if they do so.”
Oppenheim adds that another common mistake made by employers around disability issues is downplaying accommodation requests because of resource constraints and budget concerns: “They tend to dismiss or minimize the employee’s issues [or] request for accommodation, and they tend to be too quick to conclude that really what the employee is asking for is just unreasonable.”
That means approaching requests “really clear-eyed, and objective as possible,” Oppenheim says.
“If the employee is proposing something, then the employer ought to examine it very carefully, and have an open mind to see whether or not they can meet that accommodation. And if they can’t, they better be able to demonstrate, ultimately to a tribunal, that there was good reason why they couldn’t.”
