THE EMPLOYERS' EDGE
Ontario’s Human Rights Tribunal Reinstates Employee with Back Pay Nearly 10 Years after Last Day Worked
The Human Rights Tribunal of Ontario (the “HRTO” or “Tribunal”) does not often order the reinstatement of employees. However, in a decision that may signal a change in the HRTO’s mindset, the HRTO recently reinstated an employee who was out of work for nearly ten years when it was found that the employer had discriminated against the employee on the basis of her disability.
The applicant, Sharon Fair, was employed as a Supervisor of asbestos removal by an Ontario School Board. In the fall of 2001, Fair developed a generalized anxiety disorder. Her disability was a reaction to the highly stressful nature of her job and her fear that she could be held personally liable for a breach of the Occupational Health and Safety Act if there was a mistake with respect to the removal of asbestos. The applicant received LTD benefits until April of 2003 when she was deemed capable of gainful employment.
Around this time, two supervisory positions that fit the restrictions of the applicant became available but neither position was offered to her. Instead, Fair was terminated in July of 2004 when the employer claimed it was unable to locate a suitable position for her. This led to the HRTO to find that the School Board discriminated against the applicant on the basis of disability.
Once liability was established, the HRTO was left to determine the appropriate remedies.
The applicant originally filed her complaint with the Human Rights Commission of Ontario in November of 2004 but when the complaint had not yet been heard in 2009, Fair filed again with the HRTO. Fair maintained that she was entitled to her lost wages and to be reinstated into a comparable position with the School Board.
The employer argued that it would be unfair to let the applicant “lie in the weeds” for almost a decade from the time of her termination and then seek reinstatement, precluding the School Board from mitigating its losses. The employer argued further that the applicant’s claim was untimely since it should have been filed in 2003 when the discrimination occurred and not in 2004. Finally, the employer argued that it would be unfair to order reinstatement in light of the almost nine years that had passed since Fair originally filed her complaint. The HRTO disagreed.
The Tribunal held that none of the delays could be attributed to the applicant and that the passage of time, in and of itself, was not prejudicial to the School Board to justify refusing reinstatement. The Tribunal held further that the most significant impact of the delay would be the erosion of her skills.
In deciding to reinstate the applicant, the HRTO relied on a 2004 Supreme Court decision which states “[a]s a general rule, where a grievor's collective agreement rights have been violated, reinstatement of the grievor to her previous position will normally be ordered. Departure from this position should only occur where the arbitration board's findings reflect concerns that the employment relationship is no longer viable”. The HRTO conceded that in some cases, animosity between the parties can impede the potential for a successful reinstatement. However, in this case, the applicant testified that she held no ill will towards her former employer and that the few individuals who were responsible for the decisions leading to her termination were no longer in the employ of the School Board. The Tribunal held that the School Board was a very large employer with a sophisticated management structure and that the reinstatement of the applicant would not cause any hardship.
With regards to reinstatement, the School Board was ordered to reinstate the applicant to an equivalent position to the one she held when she was terminated and provide a reasonable period of training of up to six months in order to rectify the erosion of the applicant’s skills.
In terms of damages, the Tribunal ordered the School Board to compensate Fair with lost wages, out of pocket medical and dental expenses, pension contributions and the injury to her dignity, feelings and self-respect for the period of almost 10 years since she was discriminated against. The lost wages alone were calculated at over $419,000 while $30,000 was awarded to the applicant for injury to her dignity. This matter is proceeding to judicial review and CCPartners will keep you posted of any updates as they occur.
The lawyers at CCPartners can assist employers with the difficulties associated with accommodation under the Human Rights Code and with any Human Rights complaints they may be faced with.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.