For an aggrieved employee, every adverse management action can be perceived as an act of reprisal or “payback,” but can seemingly innocuous management functions such as scheduling, work assignments, and performance management be found to be retaliatory? Is discipline essentially “off-limits” after an employee has filed a grievance or complaint or has otherwise sought to enforce a right? In this session, experienced counsel will examine the distinction between valid discipline and reprisal, addressing issues such as:
- Establishing reprisal: Generally speaking, what is the test to establish that conduct is retaliatory? Who bears the onus of establishing reprisal? When will the onus relating to reprisal be reversed, requiring that the employer demonstrate that an action was not retaliatory? Does the answer depend on the legislative framework?
- Intention: Will a complainant be required to prove that the employer acted with retaliatory intent in order to substantiate a complaint? Can such intent be inferred based on an assessment of the facts? What do adjudicators look at in determining whether an action was motivated by retaliatory intent? Does retaliatory motive need to be the sole motivation for the conduct at issue, or is it sufficient if it forms only part of the motive? Can hostile intention turn what would otherwise be valid management functions, such as scheduling, work assignments, and close supervision, into retaliatory conduct?
- Demonstrating valid motives: What must an employer establish in order to defeat an inference of reprisal? What evidence can an employer provide to demonstrate that a disciplinary measure was validly imposed rather than an act of reprisal?
- Suspect discipline vs. justifiable action: What are some common “red flags” that could raise a suspicion that managerial action was retaliatory in nature? Can the timing of events, such as action taken shortly after an employee has filed a grievance or complaint, give rise to such an inference? How important is timing when assessing conduct?
- Imposing discipline: Does the prohibition against retaliation effectively prevent an employer from disciplining an employee who has filed a grievance or human rights complaint? What steps should an employer take when investigating complaints or deciding whether to impose disciplinary measures in order to ensure that retaliatory or improper motives do not form a part of the decision? Are there any measures that employers can put in place to demonstrate that a decision to discipline or disciplinary measures were valid and not an act of reprisal? What role does progressive discipline play in this analysis?