Reprisal a dish best not served

Employees are allowed to make legitimate complaints or work refusals without fear of reprisal – but it’s also not a safety net when there’s real just cause for dismissal

Reprisal a dish best not served

By Jeffrey R. Smith

It’s well established that employers must have a good reason to dismiss an employee if they’re claiming just cause and avoid responsibility for reasonable notice. In addition, that reason can’t be related to grounds that are protected under human rights legislation or the rights an employee has under employment standards or occupational health and safety legislation. In the latter instance, any kind of discipline or dismissal that came following an employee exercising her right under legislation would be viewed as an unlawful reprisal.

Reprisals can and have been made against employees who have done things like file health and safety complaints, harassment complaints, or refuse to work due to danger in the workplace. Employees are entitled to exercise their rights to do these things without facing reprisal. It doesn’t matter if a complaint or refusal leads to an actual finding of anything, as long as the employee acted in good faith and legitimately believed she had a reason to take action – the employer isn’t legally allowed to take any action against the employee because of it.

However, sometimes there is a good reason for dismissal that has nothing to do with any complaint or other action an employee may have taken under their legislative rights. It’s possible for a dismissal or issuance of discipline could just be a coincidence – otherwise, a bad employee could achieve a sort of immunity from discipline or dismissal by filing a complaint of some sort.

Take, for example, the recent case of a manager of an Ontario housing co-op. The manager was hired in late July 2016, but fairly quickly some problems arose. The manager didn’t get along well with the administrative assistant and had difficulty understanding the accounting system. She avoided contact with members of the co-op and didn’t work well with others. At regular meetings with the co-op’s board of directors, the financial reports were often incorrect and the manager couldn’t explain what happened.

The manager also decided to change when members’ cheques were deposited, which had potential for confusion for members who were used to their cheques being deposited at a certain time.

A meeting was held to try to resolve things with the administrative assistant, but in the meeting the manager acted oddly and made fun of the assistant, so little was accomplished.

In October 2016, the manager complained to the board of directors that the co-op’s external bookkeeper had treated her poorly when he was in the office by yelling at her and then ignoring her. Soon after, more errors were found in the financial reports and the manager was told her probationary period was being extended so they could fully evaluate her performance. A week later, she filed a harassment complaint that resulted in the Ontario Ministry of Labour issuing orders to Eamon Park to conduct a workplace violence risk assessment, conduct an investigation into Allen’s incident with the bookkeeper, and develop workplace violence and harassment policies.

At the end of October, the board of directors scheduled a performance evaluation where it could ask the manager about how she did the financial reports. However, the manager refused to participate until a questionnaire of her own was completed that related to the probation extension. The evaluation was cancelled and the board of directors fired her.

The manager claimed the dismissal was a reprisal for her harassment complaint, but a labour relations board disagreed. The board found that there had been issues with the manager’s performance for some time – as evidenced by the probationary period extension and various discussions with the board of directors – and the manager should have been aware of that before she ever filed the harassment complaint. As a result, her harassment complaint had nothing to do with the decision to dismiss her and there was no reprisal: see Allen v. Eamon Park Housing Co-Operative Inc., 2017 Carswell 16000 (Ont. Lab. Rel. Bd.).

When an employee makes a harassment or health and safety complaint, employers have to be careful if they’re considering taking action such as discipline or dismissal against that employee. However, if the discipline or dismissal has nothing to do with that complaint – and the employer can back that up – they should still be fine to proceed with their plans.

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