An employee who was fired approximately one month after he told
his employer that he "might get legal help" was not the
victim of a reprisal, the Ontario Labour Relations Board has
decided. Although the case was filed under the Employment
Standards Act, the ruling is of interest to health and safety
The employee did not mention the Employment Standards
Act when he said that he "might get legal
help" The OLRB decided that that assertion might
describe a broad range of possible actions not limited to those
under the Employment Standards Act.
The employee admitted that he did not know about the
Employment Standards Act when he said that he might get
legal help. Shortly after his termination, he sent an e-mail
to the company referring to wrongful dismissal and
The OLRB concluded:
"There are no 'magic words' required for an
employee to invoke the protection of s. 74 of the Act [the reprisal
provision of the Employment Standards Act] so it is not
necessary for an employee to refer specifically to the Act . . .
However, where the background facts do not appear to raise issues
of the enforcement of the Act and the employee makes only a
generalized threat to seek legal assistance – as in this case
– the protection of s. 74 of the Act cannot be
This case confirms that generalized threats will not be enough
to support an employee's complaint that he or she has been
retaliated against for asking the employer to comply with
employment standards or health and safety legislation. The
employee must have sought to exercise his or her rights under the
particular Act before he or she can claim retaliation for doing
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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