Reprisal may, as Napoleon Bonaparte once said, be “but a sad resource.” Nevertheless, it is frequently observed in operation in Canadian workplaces. Recently, we have helped a number of both employees and independent contractors facing retaliation from supervisors or other team members after they raised legitimate concerns about conduct, performance or oversight. Shortly after voicing their concerns, the employees found their own performance scrutinized by their human resources departments on spurious or fabricated allegations brought by the same individuals about whom they had raised concerns.

Attempts to silence or intimidate employees who speak up about rights or issues happen in many different workplaces and are, not surprisingly, particularly prevalent in workplaces with a bullying culture. What can employees do when HR processes or other means are used as reprisal against them?

Ranging from subtle micro-aggressions to blatant counterattacks, reprisals often leave employees outraged, frustrated and confused about how to address the situation without risking further retaliation, even dismissal. Examples of reprisal range from hostility, threats and intimidation to complaints, negative evaluations, salary cuts, failures to increase salary, withholding bonus amounts or, ultimately, even termination of employment.

The employee’s best response depends on a number of variables. If the employee is facing a clear reprisal for asserting their legal rights, they are well-protected legally. For example, it is an unlawful reprisal if an employer disciplines or dismisses an employee who raises concerns under legally protected grounds such as occupational health and safety, human rights or other rights protected by employment legislation. Of course, in practice things are rarely cut and dried, and retaliators are generally happy to raise as much dust as they can to justify their actions and cast doubt on the legitimacy of the employee’s claim.

The further the employee’s sources of concern are from legally protected rights, the less likely the retaliatory actions constitute unlawful reprisal and move into the realm of workplace bullying and harassment. For example, recently a senior employee was terminated when she raised concerns to a more senior team member concerning his behaviour toward her, which she felt was discriminatory on the basis of her race and gender. Within days she was terminated.

The legal grounds for her claim were covered by human rights legislation and the employer quickly settled the matter. Another employee complained about his superior’s weak support of his team to another leader. The supervisor found out and went on the offensive to HR, and the employee was slapped with a performance management plan.

Just because a reprisal does not arise from legally protected rights does not mean that that nothing can be done.  However, in early days, a protective or defensive stance such as papering the employee’s version of events may be the best approach. Employees often feel the sting of injustice when they realize that many HR departments default to believing the perspective of a superior or another employee based on prior relationships. This is very common in the healthcare context where bullying is pervasive.

Many employers also use template performance plans which state only that the employee violated the identified policies or codes of conduct without noting any of the facts or the employee’s perspective. This disadvantages the employee later if similar situations arise as the record does not contain the facts nor that the employee contested it as reprisal, bullying or harassment. This approach helps the employer to justify termination later on unless the employee has equally papered the record.

When addressing reprisal, the employee needs to consider the possibility of escalating retaliation. It can be helpful to map out available options. For example, if the employee otherwise likes their job and believes the issue is unlikely to arise again, they may still want to ensure that the record shows that they did not agree with the finding against them. A carefully crafted letter may provide some protection to the employee if further issues arise.

Alternatively, if the employee is comfortable being more outspoken, they might provide greater detail, identify the allegations as a reprisal, and request that the letter be kept in their HR file with the performance plan. Even if that does not occur, the employee should document it themselves, email it to their supervisor so as to have proof it was received and retain a record.

In cases of reprisal, sometimes the employee’s rights are clear and easily protected. However, even in other cases, steps to protect the employee can and should be taken, even if it is not a total knockout in round one.

BY HOWARD LEVITT AND PATRICIA NORTH

Howard Levitt is Senior Partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada. Patricia North is a Partner at Levitt Sheikh.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-heres-what-to-do-if-youre-a-target-of-workplace-reprisal-for-speaking-up