In Taylor v. International Financial Data Services (Canada) Ltd., (2018 CanLII 40487 (ON LRB)), the Ontario Labour Board recently revisited the test for reprisal under the Occupational Health and Safety Act (the “Act”). Although the Board did not substantively change the test, the decision does open the discussion on how to deal with reprisal claims in a post #MeToo world.

The Facts

In 2013, Ms. Taylor was hired as Senior Assistant Manager for International Financial Data Services (IFDS) and reported to Mr. Carnduff, who was responsible for carrying out Ms. Taylor’s semi-annual performance reviews. During her time at IFDS, Ms. Taylor’s overall performance was good. However, in 2016 her overall performance ratings were lower which resulted in her termination in January 2017.

Ms. Taylor brought an application under section 50(1) of the Act for reprisal. Section 50(1) prohibits reprisal by employers against employees who have: acted in compliance with the Act, given evidence under the Act, or made a complaint pursuant to the Act.

In her application Ms. Taylor claimed she was dismissed because she had enforced her right under the Act to seek relief from workplace harassment. Ms. Taylor gave evidence of two incidents that she claimed were workplace harassment. After the first incident, Ms. Taylor spoke with human resources to get advice on what options were available to her and at that time determined she would not file a formal complaint. After the second incident Ms. Taylor filed a formal complaint, the employer completed an investigation and concluded no harassment had taken place.

Ms. Taylor argued that there was a connection between her complaints and the termination of her employment. IFDS argued that the two incidents did not meet the definition for workplace harassment, and even if they did, there was no connection between the two complaints and the employer’s decision to terminate Ms. Taylor.

The test for Reprisal

The Board, when reviewing reprisal applications, does not usually assess the merits of the harassment complaint, but rather looks at whether a nexus can be established between the making of the harassment complaint by the employee and the subsequent termination by the employer.

The Board must first determine if a harassment complaint has been filed. In this case, the Board found that the first incident did not meet the requirement because Ms. Taylor did not “formally” file a complaint under the employer’s policy. After determining whether a complaint has been filed, the Board will consider if the employer terminated or penalized the employee for filing the complaint; specifically is there a connection between the filing of the complaint and the actions taken by the employer.

In reprisal cases the respondent bears the burden of proving under section 50(5), that on a balance of probabilities, it did not act contrary to the Act when terminating the employee. This will require the employer to prove why it took the steps it did when terminating the employee.

The test in a #MeToo world

The difficulty with the test is the disparity between what we know about when employees file complaints and what is required to prove reprisal. The test as it is now does not take into consideration some of the issues with filing workplace harassment complaints.

The reality we see is that there is a large problem with underreporting. In a recent Angus Reid survey of women who experienced harassment in the workplace, only 23% said they did report. The same survey completed three years later showed the same problem of underreporting. 72% of women surveyed said they did not report the harassment to their employer. Underreporting is so widespread in society because complainants fear they will not be believed, will suffer negative consequences for enforcing their rights or fear no action will be taken.

Fear of reprisal is also a reality. In fact, a recent study by the US Equal Employment Opportunity Commission found that 75% of workplace harassment victims experienced retaliation after filing a complaint. This fear only contributes to underreporting.

So it comes as no surprise that in some situations employees may not proceed with a formal complaint, as was the issue in this decision. The Board questioned whether the complainant’s conversation with human resources could be considered the filing of a formal complaint. The Board found that because the complainant expressly wished that no complaint be undertaken; the complainant did not seek to, nor file, a complaint with the express interest of enforcement under the Act.

In cases previously before the Board, it had found that when an employee makes a complaint under an employer’s harassment policy; it will meet the requirement for enforcement under s. 50(1) of the Act. However, there is no discussion in this case about what “filing” a complaint means, yet a negative inference was drawn because the complainant did not formally file a complaint.

The Act requires employers to have an internal process for receiving and addressing workplace harassment incidents and complaints. An employer’s obligation to do something meaningful – ie investigate – is triggered by an awareness of an incident, not just the filing of a formal complaint. This is at odds with this decision and the current test for reprisal which, as this decision shows, continues to be reliant on the filing of a formal complaint as a pre-condition for reprisal to exist. Perhaps it is time for legal decision makers to reconsider and broaden their approach to their analysis of reprisal.