Employee Reinstated after More than a Decade away from Workplace

Wrongful Dismissal Action

In the case of Hamilton-Wentworth District School Board v Fair, the Ontario Court of Appeal has now ruled on what has turned out to be a very expensive human resources mistake.

The Court of Appeal decision upholds the original Ontario Human Rights Tribunal Decision which concluded that the remedy for an employee who had experienced discrimination was reinstatement to her employment after a lengthy absence.

Ms. Fair had worked for the Board for approximately 13 years when she developed a medical condition which prevented her from working. After a temporary leave of absence in which she sought and received medical treatment, Ms. Fair was cleared to return to modified work.

Despite this, and despite suitable modified positions being available for her in April 2003, the Board did not return Ms. Fair to the workplace and, ultimately, terminated her employment.

Ms. Fair filed an application with the Ontario Human Rights Tribunal alleging the Board had discriminated against her and failed in its duty to accommodate in the workplace.

The Ontario Human Rights Tribunal has wide remedial powers, and, in March 2013 it exercised those powers when it ordered Ms. Fair be reinstated to her employment (after a nearly 12-year absence) and that she be provided with back pay from April 2003 (the date suitable alternative jobs were available) to the date of reinstatement. While reinstatement is common in labour practice, it is not common in the context of Human Rights matters. In this case, the Tribunal found, and the higher courts agreed, that the employment relationship had not been fractured beyond repair, and that Ms. Fair had not lost her skills and abilities to perform the modified work during her long absence from employment.

Lessons for Employers

Employers are reminded that Human Rights legislation has quite broad remedial powers which could result in substantial cost to them. To avoid liability be active, prompt and diligent in the accommodation of employees and always seek legal advice from experienced Employment Law counsel.

Lessons for Employees

Employees are reminded that they have a duty to participate in the accommodation process. As in this case, the employee provided timely and complete information to the employer with respect to her abilities and limitations in the workplace, after seeking legal advice.

See also our blog, “Reinstatement of Employee After Almost a Decade and Over $400,000 in Back Pay and Damages”.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.

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