How an Employee Files a Reprisal Application
Employee is a Member of a Union
An employee working under a union collective agreement can use the grievance procedure in that collective agreement to make an unlawful reprisal complaint under section 50 of the Occupational Health and Safety Act (OHSA). In the construction industry, the grievance would proceed before the Ontario Labour Relations Board (OLRB), and the Office of the Employer Adviser (OEA) can assist the employer in responding to the grievance and represent the employer at the OLRB, if that employer has fewer than 50 employees. Outside of the construction industry, the grievance would proceed before an arbitrator, not the OLRB, and the OEA cannot represent the employer.
An employee working under a union collective agreement can choose to bypass the collective agreement grievance procedure and bring an unlawful reprisal application directly before the OLRB, with or without the involvement of the union. As the claim would proceed before the OLRB and not an arbitrator, the OEA could represent the employer in those circumstances.
Employee is not a member of a Union
An employee who is not working under a union collective agreement can only bring an unlawful reprisal complaint under section 50 of the OHSA by filing an application with the OLRB. To begin that process, the employee must deliver to the employer;
- a completed OLRB Application Form A-53
- a blank OLRB Response Form A-54
- a Notice to Employer OLRB Form C-26, and
- a copy of OLRB Information Bulletin #14.
All of the OLRB Forms are available for download at the OLRB website. The application must then be filed with the OLRB not later than five days (excluding weekends and statutory holidays) after it was delivered to the employer.
Ministry of Labour Inspector
A Ministry of Labour Inspector can file an unlawful reprisal application with the OLRB on behalf of an employee, but only where the employee alleges the reprisal included a termination of employment. The employer would receive the same four documents as with a regular non-union section 50 application before the OLRB, plus a Ministry of Labour Reprisal Fact Sheet, and a Referral of Alleged Reprisal form completed and signed by the Inspector. After delivering the application to the employer and filing it with the OLRB, the Inspector does not provide the employee with any further assistance with the application process or hearing.
How an Employer Responds to an Application
An employer served with an OHSA unlawful reprisal application must complete the Response to Application OLRB Form A-54, deliver the completed Form to the employee, and then file it with the OLRB. An employer has only ten days (excluding weekends and statutory holidays) to file the Response with the OLRB, and the Board adheres strictly to its filing deadlines. If the employer fails to file the Response within that time, the OLRB may accept the facts as alleged in the application, and rule on the application without further notice to the employer.
Where the employee has made an unlawful reprisal claim through the union grievance procedure, the form and time limits for response would be the same as with any other grievance under the applicable collective agreement.
Delivery and Filing of OLRB Forms
Delivery of OLRB forms on an opposing party can be done by hand, courier, regular mail, fax or by other means to which the parties agree. Filing with the OLRB can be done by hand, courier, or regular mail only. Faxing a Response to the OLRB will not be accepted as a valid filing.