City of Moose Jaw case highlights how post-complaint decisions can look like punishment
When an employee files a harassment complaint, the legal standard on reprisal is clear – but the way employers respond in the days and weeks that follow can make or break a subsequent retaliation case.
Drawing on a recent Saskatchewan Labour Relations Board decision and insights from two employment lawyers, the picture that emerges is stark: there is little room for missteps once a worker comes forward.
“It’s not a very fine line. I would call it a bright red line,” says Joe Oppenheim, an employment lawyer at Carbert Waite in Calgary.
“If an employee proceeds with any kind of a complaint for safety or is holding the employer to account to meet its safety obligations … the employer is strictly prohibited from any kind of reprisal.”
He goes on to explain that the way tribunals assess employer retaliation is straightforward, with at the base of it the question of what was most likely the motivation for certain actions, based on the facts.
“The employer is obligated to put their best foot forward with respect to their evidence, and to explain themselves and to have witnesses who've got firsthand information about what happened,” Oppenheim says.
“If the employer fails to do that, chances are the tribunal is going to side with the employee.”
A recent Saskatchewan Labour Relations Board (SLRB) ruling, City of Moose Jaw v Wenarchuk, offers an...
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