Health and Safety - Reprisal Complaints
Table of contents
Federally regulated employers are not allowed to retaliate against employees for exercising health and safety rights under Part II of the Canada Labour Code. Employees who believe that an employer has retaliated against them can file a complaint with the Canada Industrial Relations Board (the Board). The complaint is called a “reprisal” complaint.
If you are looking for information on how to appeal a direction, go to the page called Appeals of Directions (of the Head of Compliance and Enforcement).
If you are looking for information on how to appeal a decision of “no danger,” go to the page called Appeals of Decisions that a Situation Does not Present a Danger.
What is a Health and Safety right?
- Health and safety rights include the right to:
- refuse dangerous work;
- report harassment;
- report a workplace hazard;
- report accidents;
- have the personal protective equipment necessary to do your job safely;
- cooperate with those who are responsible for health and safety at work; and
- participate in a health and safety committee.
Who can file a complaint?
- You work or worked for a federally regulated business.
- You followed the health and safety obligations of the Canada Labour Code, or you asked the employer to comply with health and safety obligations under the Canada Labour Code.
- You believe that, as a result, your employer threatened or imposed a penalty on you or disciplined you. For example, you were:
- dismissed;
- suspended;
- laid off;
- demoted; or
- penalized financially.
What information do I need to make a complaint?
- It is recommended that you use the Reprisal Complaint form to file your complaint. The form asks for the information that the Board needs to make a decision. Not providing the information that the form asks for may cause delays in the complaint process and may result in your complaint being dismissed.
- You must provide a description of:
- the retaliatory action that the employer took against you;
- the incident that caused the employer to retaliate; and
- why you think the two are related.
- You should also include any evidence and documents that help you prove your case.
- If the complaint deals with reprisals following a refusal to do dangerous work, the employer has to prove that its action was not linked to the exercise of your right to refuse dangerous work.
How do I file a complaint?
- It is strongly recommended that you use the Reprisal Complaint form to file your complaint. The form contains the information that the Board needs to make a decision and will help you make sure that the information that you are filing is complete.
- If you do not file all the information that the Board needs, it will take the Board longer to process your complaint.
- In some cases, not filing all the information that the Board needs can result in your complaint being dismissed without the opportunity to make any further submissions.
- All documents, including the complaint and all supporting documents are filed using the Board’s E-filing Web Portal. This is the fastest and most accurate way to file documents with the Board.
- You do not need to send the Board a paper copy of documents that have been e-filed with the Board. If you need assistance with the E-filing Web Portal, you can contact the Board directly using its 1-800 line or online inquiry. The Board’s contact information can be found here.
When does the complaint have to be filed?
- A complaint must be filed within 90 calendar days of the date the employee knew, or should have known, of the existence of the complaint.
- In some cases, the Board will allow a complaint to be filed after 90 days. However, you need to have good reasons for why you could not file the complaint within the 90-day period.
Who is involved?
- Employee (You) – also called the “complainant.”
- Employer – also called the “respondent.”
- Together, you and the employer are called the “parties.”
- A union, if you are represented by one. The union must ask for the Board’s permission to participate. This is called a “request to intervene.” For more information on intervenor status, please see the section below called “What if I am unionized?”.
- An Industrial Relations Officer (IRO) – for more information on the role of the IRO, click here.
- A decision maker appointed by the Chairperson of the Board to hear and decide your complaint.
Can I be represented by someone else?
- Yes, each party can be represented by the person of their choice.
- The Board does not provide lawyers to assist parties.
- The Industrial Relations Officer working on the file can help parties understand the process and what they need to do to prepare for a hearing, but they are impartial and do not provide legal or strategic advice as a lawyer would.
- The Board recognizes that parties who represent themselves may not know the law or the process and may find it intimidating to appear before the Board. The Board will try to make the process as simple as possible given the nature of the dispute.
- It is important that you attend any case management conferences that the Board organizes. These conferences are often used by the Board to explain the process and what the Board will expect from the parties at a hearing.
What if I am unionized?
- Before you file your complaint, you may want to contact your union to determine whether it can help you. You should also let the Board know that you are part of a bargaining unit that is represented by a union.
- The Board will usually let the union know about the complaint and give it the opportunity to participate in the case. The parties will have the opportunity to tell the Board why they think the union should or should not be allowed to participate. If the Board lets the union participate, it will have what is called “intervenor” status.
What happens after the complaint has been filed?
- The Board will send the person or organization who made the complaint (the complainant) and the person or organization named in the complaint (the respondent) a letter confirming that it has received the complaint.
- If either of these parties has hired a representative, such as a lawyer, the letter will be sent to the representative. It is the representative’s obligation to keep the person that they represent up to date.
- The letter will:
- include your case file number;
- include a copy of all documents filed by the complainant; and
- tell you when you can file additional information and documents (submissions).
- The letter will also include the name and contact information of the Board’s Industrial Relations Officer (IRO) who will assist the Board and the parties with the complaint.
The parties are responsible for filing their arguments and documents. The IRO answers questions that the parties have and assists the parties to reach a settlement whenever possible.
- The letter will also advise the person or organization that the complaint is against (the respondent) of:
- how much time they have to file a response to the complaint; and
- how much time the complainant will have to reply to any new facts and arguments that the respondent raises.
- Normally, the Board gives the respondent 15 calendar days to file a response and the complainant 10 calendar days to file a reply. Sometimes the Board will shorten the deadlines for responding. Make sure you read the letter that you receive from the Board.
Sometimes, the Board will shorten the deadline. For example, if the complaint involves a dismissal from employment, the Board may only give 5 calendar days for the employer’s response and 5 calendar days for the complainant’s reply. It is important to read the letter that you receive from the Board.
- The response should clearly explain the respondent’s version of the facts to the Board. The response should also include any documents that the respondent has which the complainant did not file and which are relevant to the complaint.
- If you decide not to file a reply, you should write to the Board and tell it that you will not be filing one.
- You do not need to file documents that the other party has already filed.
- The parties are responsible for filing their arguments and documents on time.
- If you need more time to file your submissions, you need to ask the Board to extend the deadline. The Board will want to know why you are late and need more time and will only give you more time if you have a good reason. The Board can refuse to consider any responses or replies that are filed late where an extension has not been given.
How do I file my documents, representations, or evidence?
- All complaints, applications, responses, replies and supporting documents are filed using the Board’s E-Filing Web Portal. This is the fastest and most accurate way to file documents with the Board. It is not necessary to send the Board a paper copy of documents that have been e-filed with the Board.
- Each party must send all the other parties a copy of any document that they file with the Board. This can be done by email, mail, registered mail, courier or by hand.
- When you file documents with the Board, you must tell the Board how and when you sent the documents that you are filing to the other parties.
Is the information in my file confidential?
- Parties who file documents with the Board are participating in a public hearing. This means the documents that are in the file are available to the public.
- If a party is concerned about some of the information that they are filing with the Board being available to the public, that person can ask the Board to issue a confidentiality order. If the request is granted, the information that is protected will not be publicly available. For more information, you can refer to the Board’s Policy on Openness and Privacy or contact the Industrial Relations Officer responsible for your case.
Will there be mediation?
- Mediation is part of the Board’s process. It is recommended that parties attempt to mediate their dispute. Many of the Board’s files are settled at the mediation stage. Mediation allows the parties to settle the dispute on their terms and resolves the matter faster than if the file has to go to a Board member for a decision.
- The Industrial Relations Officer assigned to your file will contact you to discuss the mediation options offered at the Board.
- For more information on the mediation process, please click here.
Will there be a hearing?
- Not necessarily. In many cases, the Board can make a decision based on the documents on file, without holding a hearing. This is part of the reason why written submissions should be as complete as possible. This is true even if the parties request a hearing.
- If the Board decides to hold a hearing, it will advise the parties of the date, time, and location of the hearing in advance, usually after holding a Case Management Conference.
- For more information on the Board’s hearing process, please click here.
What can the Board order?
- If the Board agrees that your employer has retaliated against you for exercising a health and safety right, it can order the employer to stop the retaliation and put you back in the same position that you would have been in had the employer not retaliated. For example, depending on the action the employer took, the Board can order the employer to:
- put you back in your position;
- remove the discipline from your employee file;
- compensate you for any lost wages; and
- compensate you for any financial penalty that it imposed on you.
When will I get the decision?
- The Board will notify you in writing of its decision.
- The time that it takes the Board to issue a decision can vary depending on the complexity of the case.
- All important decisions of the Board are published on the Decisions page.
- You can consult the Board’s performance statistics for more information on the average time it takes the Board to issue a decision after a complaint is filed.
Is the Board’s decision final?
The Board’s decisions are final and can only be reviewed in very specific circumstances.
- If you believe that a Board decision is unreasonable, you can apply to the Federal Court of Appeal for judicial review; or
- If you believe the Board has made a serious error and should correct its original decision, you can file an application for reconsideration.
In both cases, there is a strict 30 calendar day deadline to file your application from the date of the decision.
Follow these links for more information on Applications for Reconsideration and Applications for Judicial Review.