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Employment Standards Act not license for bad behaviour

The Employment Standards Act of Ontario sets out minimum entitlements for employees. It covers everything from minimum wage to overtime to parental leaves.
 
Having rights you are too afraid to stand up for is not much use.  That is why the Act prohibits employers from intimidating, dismissing or otherwise penalizing, or threatening to do those things, because an employee has asked the employer to comply with the Act, asked questions about her rights, filed a complaint or attempted to exercise any of her rights or participate in any proceedings.
 
If an employee files a reprisal complaint with the Ministry of Labour, it will be investigated and if it is found that some discriminatory action or termination was a result of the employee having stood up for their Employment Standards Act rights, the remedies can be dramatic.  An Employment Standards Act officer can order reinstatement, back-pay, damages for emotional pain and suffering and various other heads of damage.
 
Clearly cutting an employee’s hour or terminating their employment because they asked why the employer was not paying statutory holiday pay would be a reprisal.
 
Things get complicated, however, when employees get too aggressive about how they raise their concerns. In one case, an employee sent an email to the general manager objecting to his recent performance appraisal. In that email he suggested that his immediate boss was incompetent, took kickbacks from suppliers, hired his friends to do contract work, discriminated against the employee because of his ethnicity and, made errors with respect to payroll records and wages. He also made an allegation that his boss was having an affair with another employee.
 
In an email four days later to his boss, again objecting to his recent performance review, he suggested that if he took the matter to a human rights tribunal his boss’s reputation would be ruined and nobody would buy the company’s product.
 
In the midst of these increasingly aggressive emails, the employer put the employee on a paid leave of absence while it investigated all of these allegations. The employee’s response was to send an email to all members of the executive team alleging that he had been removed from the workplace as a result of discrimination.
 
A few days later he sent an email to upper management alleging that managers were misusing corporate assets. All of these allegations were, in fact, fully investigated by the employer and found to be baseless. The employee’s employment was terminated. His emails had been becoming increasingly accusatory, angry, threatening, and aggressive. He was paid the termination pay he was owed.
 
But one of the complaints the employee had made had been payroll errors. Tthat gave him the window to file a reprisal complaint. He alleged that the only reason he was terminated was because he had alleged that errors had been made with respect to the payroll.
 
When the Ministry of Labour looked at the entire situation, however, it became clear that the payroll problems were an incidental part of this story.
 
The employee had rendered the relationship with his employer untenable by making wild and broad allegations about almost everyone who worked there, not just his immediate supervisor.
 
The lesson of this story is, if you have a problem with your employer not honouring the Employment Standards Act, talk to them about it. Talk to them civilly and professionally. If you don’t’ get resolution you can always file a complaint with the Ministry of Labour.
 
The reprisal sections of the Employment Standards Act are not a license to be belligerent. Here’s what not to do:
 
Hey, #&*@%!, you forgot to pay me my overtime on my last pay cheque.  What the #$&! is wrong with you? Have you got #*&! for brains? I want my &#*@?%*! money and I want it now, you #&*@%!.
 
If that behaviour gets you fired and you file a reprisal complaint, don’t bet on success. The Act protects employees from enforcing their rights, not employees who behave like an #&*@%!.
 
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com