When The Employer Has the Burden to Prove What Didn’t Happen

An employee who alleges wrongdoing by their employer usually has the the burden of proving their allegations. However, the reverse may be true when the allegation is one of reprisal (i.e., adverse consequences resulting from an employee exercising their rights), in which case the employer may have the burden of proving that wrongdoing did not occur. This is known as a “reverse onus”, and it presents the challenge of calling on employers to bring forward tangible evidence to prove what didn’t happen.

A case in point is the recent Ontario Labour Relations Board (OLRB) decision in Randi Libman v iA Clarington Investments Inc., 2023 CanLII 129070. In that matter, the OLRB found that an employer had not met its burden to prove that a decision to layoff and later terminate an employee was not in reprisal for the employee’s having filed a harassment complaint. The OLRB’s decision stemmed from concerns arising from the following timeline of events:

• In July 2020, the employer announced a restructuring of its administrative operations that would impact on the employee’s job and the jobs of many colleagues;

• When the restructuring was first announced, the employee’s role was identified as “critical” and she was offered a retention bonus related to the completion of transfer activities;

• Late in 2021, the employee filed a workplace harassment complaint related to a colleague, which led to an investigation and a workplace mediation that did not reach a resolution;

• In December 2021, the employee was placed on layoff; and

• In January 2022, the employee reported to human resources that she was not interested in looking for an alternative position with the employer, which the employer accepted as an expression of an intention to resign.

  
  

A key concern for the OLRB was the disparity in the employer’s position in July 2020 compared with December 2021 – which saw a change from the employee being considered “critical” to being placed on layoff. Finding that the employer had not provided a convincing reason for the change, the OLRB found it more likely than not that the employee’s harassment complaint during the intervening period had impacted on the employer’s decisions to place the employee on layoff and to subsequently terminate her employment.  

The key takeaway? When it comes to an employer making decisions that may adversely impact an employee – particularly when those decisions may result in the end of the employment relationship – due process, transparency, and careful documentation of the reasons behind the employer’s decisions are key for ensuring that concerns of reprisal are addressed appropriately at the earliest opportunity.