In Hamilton-Wentworth District School Board v. Fair, the Divisional Court of Ontario upheld the 2012 and 2013 Tribunal decisions to reinstate an employee after almost a decade along with over $400,000 in back pay and damages. The decision is remarkable for the rarely awarded reinstatement and the unusually high damage award.
The employee was employed by the Board from October 24, 1988 to July 8, 2004, when her employment was terminated. At the time of her termination she was a Supervisor, Regulated Substances, Asbestos. She began disability leave in 2001 for general anxiety and post-traumatic stress disorder caused by her fear the improper performance of her job duties could result in her liability under the Occupational Health and Safety Act. Her disability leave expired in April 2004, and the School Board subsequently terminated her employment, effective July 8, 2004. At the time of her disability onset in October 2001, she had more than 15 years of service and performed in a supervisory capacity.
In November 2004, the Applicant began a Human Rights application. Due to various delays it took almost ten years for a decision to be rendered. In 2012, the Tribunal concluded the Board failed to accommodate the Applicant to the point of undue hardship and failed to consider her for other options available in the workplace, even if they arose while she was receiving LTD benefits. In their 2013 decision, the Tribunal held reinstatement, with full back pay, was required to put the employee back into the position she would have been had the discrimination not occurred.
The Divisional Court upheld both Tribunal decisions. The Divisional Court noted while uncommon in human rights, reinstatement is not unusual in labour relations arbitrations under the provisions of the collective agreement, which often deal with similar issues. The Divisional Court affirmed that reinstatement, even after a long absence, is a remedy available to the Tribunal.
Lessons for Employers
A proactive approach to accommodation is one of the best defenses available to employers in Human Rights situations. It is important for employers to follow procedural duties when it comes to allegations of discrimination contrary to the Human Rights Code. Employers should canvass all possible options when accommodation is required and must take allegations of discrimination and harassment seriously. It is risky to do otherwise.
Lessons for Employees
If termination follows discrimination, then reinstatement may be an option when requesting remedies from the Human Rights Tribunal. Mitigate your damages by searching for employment diligently and keeping records of all your mitigation efforts.
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.
Sign up for our e-Newsletter for the latest updates and case studies in employment law.