Firing after employee’s “generalized threat to get legal advice” was not retaliatory

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 professionals.

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 discrimination.

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 engaged.”

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 so.

Zongping (Peter) Luo v Economical Mutual Insurance Company, 2015 CanLII 79023 (ON LRB)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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