Thursday, May 26, 2011

Ontario Employment Law: Reprisal For Asserting Rights Pursuant To An Employment Contract Amounts To Wrongful Dismissal

In Brown v. 1714717 Ontario Inc., decided April 26, 2011, the Ontario Labour Relations Board found that an employer had wrongfully terminated the applicant employee when it dismissed her without cause, and in reprisal for requesting and taking time off for a vacation.

Because the employee in the case had completed less than twelve months of employment at the time she asked for time-off, she was not entitled to take a vacation or receive vacation pay under Part XI of the Ontario Employment Standards Act. Therefore, she could not insist on these entitlements as a matter of law.

Nonetheless, the employer acceded to her vacation request for time off. It also paid the applicant her accrued vacation pay. In so doing, the employer had conferred on to the applicant a greater right or benefit than the "minimum standard" provided for under the Act.

Subsection 5(2) of the Act reads as follows:
(2) If one or more provisions in an employment contract or in another act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions of the contract or Act apply and the employment standard does not apply.
Having given the applicant employee a "greater right" in permitting her take the requested time off, the employer could not then reprise against her for exercising the right merely because it was one that flowed from the employment agreement, as opposed to from the Act. This was equally a violation of section 74 of the Ontario Employment Standards Act, which, in part, reads as follows:
(1) No employer or person acting on behalf of an employer shall intimidate, dismiss or otherwise penalize an employee or threaten to do so,

(a) because the employee

(iv) exercises or attempts to exercise a right under this Act
Because the responding party employer did not participate in the hearing, leaving the applicant's testimony uncontradicted and fully intact, the employer could not discharge its burden to demonstrate that it had not contravened the Act by dismissing the employee for requesting and taking a vacation from work (see subsection 74(2) of the Act).

Thus, the board found that the applicant had been wrongfully dismissed. In addition to termination pay, which she had already received from the respondent employer, the board awarded her $500.00 in damages for the employer's violation of the reprisal provisions of the Act.
- Robert Tanha, Toronto

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