Business Justifications Shield Employer in Reprisal Complaint

Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.

Under Ontario’s occupational health and safety legislation’s reprisal provisions, the employer in 2023 CanLII 73671 was able to show that its actions weren’t motivated by any ill-will toward the employee for filing a harassment complaint against her manager. The case offers a reminder to employers of the value of maintaining evidence that can show a chronology of key events. What on its face may appear to be nefarious retaliation may actually be the outcome of a planned organizational decision that was made for a valid business reason.

Background

Having filed a harassment complaint against her manager, it’s easy to understand why the librarian at the centre of the case was upset and alleged reprisal: her immediate position was being eliminated, and the employer refused to consider her for the archivist position her former job was being phased into.

What the Board said

Starting with the onus of proof, the Board said it’s not enough for the employer to simply show it had valid business reasons for what it did. Rather, the legislation puts the onus on the employer to prove, on a balance of probabilities, that the Board and the employee’s exercise of rights under the Act played no part in the decision. The employer has to prove it didn’t consider the complaint; that its decision isn’t tainted by the issue.

Then, looking at each adverse effect in succession, the Board explained why the employee’s complaint had to fail.

Perhaps the most compelling reason was there was found to be no improper motive for the decision to eliminate the employee’s position, and that it was in the works for years, only coming to fruition in 2021 when the employer learned of a new federal grant. This all predated the filing of the harassment complaint, and was backed by a valid business reason, which was tied to the archivist job. For that reason, the Board saw no problem with the elimination of the position.

As for the archivist job, despite having relevant experience in records management, it was limited, and the employee lacked one of the formal qualifications the employer sought.

In addition, the Board heard and accepted evidence about the library’s intention to grow its Chinese Canadian Archive, the sector where the employee worked, by hiring someone who could plan the archive’s growth and use proper archival standards and practices. The library wasn’t assured the employee was the leader it needed. In short, the employer’s plan was to inject some fresh thinking; and not rely on the ideas of people who have been within the system too long. The Board said that when credentials are prioritized over experience, it can be a bitter pill for a long-standing employee to swallow. But that decision is based on normal business judgment, said the Board, something that, by itself, didn’t amount to any animus against the employee based on her complaint.

The Board rounded out its decision with a finding that a suspension issued to the employee in early 2022 was, equally, unrelated to the harassment complaint. The Board noted how the suspension went ungrieved, and therefore was presumed to have been justified. The Board said in the circumstances, it would not draw an adverse inference against the employer.

Key takeaway

When an employee alleges reprisal by the employer because they filed a harassment complaint, defeating it becomes a matter of proof. And what better way to prove the lack of any improper motive than with evidence showing the “bad outcome” for the employee had been planned for some time. If, like in this case, the negative impact on the employee comes from a reorganization or a normal business decision, the employer should still be ready to justify the timing of its implementation.

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