Fired after asking about your rights or taking a leave in Ontario: is it reprisal?

It may be. Ontario's Employment Standards Act forbids an employer to fire, discipline, intimidate or otherwise penalize you because you asked about or tried to enforce your ESA rights, filed a complaint, or took or planned to take a protected leave. If you file an ESA claim, the employer has to prove it did not commit a reprisal, and an officer can order your job back, compensation, or both.

Reprisal often looks ordinary from the outside: hours cut after a question about overtime, a sudden "restructuring" after a pregnancy announcement, a dismissal two days after an employee asks for unpaid vacation pay. The ESA treats these situations seriously because the timing is often the only evidence. This guide explains what the ESA protects, how a reprisal claim works, the separate protections in the Human Rights Code and the Occupational Health and Safety Act, and what to do first. It applies to employees across Toronto and York Region, including Persian-speaking workers who may have asked for time off to care for a parent in Iran or to attend a funeral there. Our main page on employment disputes covers the wider picture.

What does section 74 protect?

What the employer may not do is broad: "intimidate, dismiss or otherwise penalize" an employee, "or threaten to do so" (s. 74(1)). The province's guide lists punishing, reducing pay, intimidating, suspending, firing, penalizing in any other way, and threatening any of these.

Which leaves are protected?

Part XIV of the ESA sets out the leaves of absence. They include pregnancy leave (s. 46), parental leave (s. 48), family medical leave (s. 49.1), family caregiver leave (s. 49.3), critical illness leave (s. 49.4), domestic or sexual violence leave (s. 49.7), family responsibility leave (s. 50.0.1), bereavement leave (s. 50.0.2), reservist leave (s. 50.2) and job seeking leave (s. 50.3). Each has its own eligibility rules and length, set out in the Act. When a leave ends, the employer must generally reinstate you to the position you most recently held, if it still exists, or to a comparable one (s. 53(1)).

For families with parents abroad, the leaves most likely to apply are family medical and family caregiver leave when a parent is seriously ill, and bereavement leave when a relative dies. Ask for the leave in writing, say which leave you are taking, and keep a copy; that record matters if the employer later reacts badly.

How does a reprisal claim work, step by step?

The reversed burden in s. 74(2) is what makes the ESA route strong for reprisal. You still need to show what you did (the question, the complaint, the leave request) and what happened next. The employer then has to prove that the dismissal or discipline was not because of it. The province's example in its guide is an employee fired after asking to be paid minimum wage; the officer ordered her job back, the minimum wage arrears, the wages and vacation pay she would have earned in between, and a raise to minimum wage.

What other laws protect against reprisal?

• Human Rights Code. Everyone has the right to claim and enforce Code rights without reprisal or threat of reprisal (s. 8). Applications go to the Human Rights Tribunal of Ontario within one year after the incident, or the last of a series (s. 34(1)). This matters where the dismissal followed a complaint of discrimination because of place of origin, ethnic origin, citizenship, creed, family status or another Code ground (s. 5(1)).
• Occupational Health and Safety Act. An employer may not dismiss, discipline, penalize, intimidate or coerce a worker for acting in compliance with the Act or seeking its enforcement (s. 50(1)). The worker can have it dealt with under a collective agreement or file a complaint with the Ontario Labour Relations Board (s. 50(2)).
• A wrongful dismissal claim in court. Separate from reprisal, a dismissed employee may have a claim for reasonable notice; but filing an ESA claim for termination or severance pay can bar it (s. 97(2)). Our guide on choosing between an ESA claim and a lawsuit explains the trade-off.

What evidence helps a reprisal claim?

Because the employer carries the burden under s. 74(2), the employee's job is mainly to show the protected action and its timing. Useful records include the email or text in which you asked about pay, overtime, vacation pay or a leave; any reply; the date you filed an ESA complaint, if you did; schedules and pay stubs before and after; the termination letter and any reasons given; and recent performance reviews. If the employer later says the decision was about performance or restructuring, documents created before your request are useful to compare with explanations given afterwards.

Write down conversations soon after they happen, with the date, who was there and what was said. If some messages are in Persian, keep the originals; in court, documents in another language must be filed with an English translation certified by the translator's affidavit, as our guide to Farsi interpreters and translated documents explains. Workers placed by a temporary help agency have similar protection: the province's guide says clients of temporary help agencies are also prohibited from penalizing assignment employees in certain circumstances.

What changes the answer?

• What you did before the penalty. It must be one of the protected actions in s. 74(1).
• Timing and records. A written request, a dated complaint or a leave letter shortly before the penalty is strong evidence; the employer then carries the burden (s. 74(2)).
• Whether you are covered. Most employees are covered by the ESA; some have special rules or exemptions (ontario.ca filing a claim).
• Leave eligibility. Each leave has its own conditions; being eligible, intending to take one, or taking one are all protected (s. 74(1)(a)(viii)).
• The remedy you want. An ESA officer can order reinstatement (s. 104(1)); a court claim usually seeks money.
• Deadlines. Two years for an ESA claim (s. 96(3)); one year for a human rights application (Code s. 34).

A worked example

For example, imagine a pharmacy assistant in Richmond Hill whose father in Shiraz has a serious illness. She tells her manager by email that she needs family medical leave to be with him. Two days later she is told her position is "no longer needed" and is offered two weeks' pay. This is a hypothetical walk-through of the rules, not a description of any real case or result.

Her email shows she said she intended to take a Part XIV leave, which s. 74(1)(a)(viii) protects. She files an ESA claim for reprisal. Because of s. 74(2), the employer must prove the dismissal had nothing to do with the leave, for example by showing a real restructuring decided earlier, with documents. If the officer finds a reprisal, the officer can order her reinstated, compensated, or both. Before she files, she also considers whether she wants her job back or would rather pursue a larger dismissal claim in court, because an ESA claim for termination pay would bar a wrongful dismissal lawsuit about the same termination unless withdrawn within two weeks.

What mistakes do people make after a possible reprisal?

1. Asking for leave only by phone. Put the request and the type of leave in writing.
2. Signing a release quickly. Read our guide on what to check before signing a severance offer.
3. Assuming you must prove the employer's motive. Under s. 74(2), the employer must prove it did not commit a reprisal.
4. Missing the one-year human rights deadline. It is shorter than the ESA's two years.
5. Deleting work messages. Save emails, texts and schedules to a personal record you are allowed to keep.
6. Not saying what you want. Reinstatement is possible under the ESA; decide whether you want it.

What to do this week

1. Write a dated timeline: what you asked or did, when, to whom, and what happened next.
2. Save copies of the request, the complaint or the leave letter and the employer's response.
3. Keep pay stubs and schedules showing any change in hours or pay.
4. Do not sign a release before getting advice.
5. Mark one year and two years from the date of the penalty.
6. Book a consultation; you can discuss your matter in English, Persian (Farsi) or French.

Frequently asked questions

Is cutting my hours a reprisal?

It can be. Section 74(1) covers any penalty, and the province's guide lists reducing pay, suspending and penalizing "in any other way". The question is whether the cut was because of a protected action.

Can I be fired during a probation period for asking about overtime?

Section 74 does not set a minimum length of service. Notice and termination pay rules start after three months (s. 54), but the reprisal protection does not depend on them.

Can an officer order my job back?

Yes. For reprisal, an employment standards officer may order that the employee be compensated, reinstated, or both (s. 104(1)).

What if I complained about discrimination, not about pay?

That is protected by the Human Rights Code (s. 8), with applications to the Human Rights Tribunal of Ontario within one year (s. 34).

Is a safety complaint protected?

Yes, under the Occupational Health and Safety Act (s. 50), with complaints to the Ontario Labour Relations Board or under a collective agreement.

Can I sue instead of filing an ESA claim?

You may have a court claim for wrongful dismissal, but the two routes can bar each other (ss. 97, 98). Larger claims go to the Superior Court; our civil litigation page describes how court claims work in general.

Related questions

Claims up to $50,000 can go to Small Claims Court, explained on our Small Claims Court page. Persian-speaking clients can read our frequently asked questions about consultations in Persian. Our other guides are listed on the services page.

Sourena Sarbazevatan is a Persian-speaking lawyer, and you can discuss a possible reprisal with him in Farsi, English or French. Call +1 (416) 628-2041 or use the contact page.