Reinstatement – and 10 years of back pay (Legal View)

Ontario school board ordered to pay employee $419,000 in lost wages
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 05/06/2013

The Ontario Human Rights Tribunal has ordered an employer to reinstate a terminated employee after a finding of discrimination based on disability — one decade after the employee last worked.

Sharon Fair worked for the Hamilton-Wentworth District School Board beginning in 1988. In 1994, she became supervisor of regulated substances, asbestos, for the board. The job was highly stressful and Fair became afraid she would make a mistake about asbestos removal, causing her to be held personally liable for a breach of Ontario’s Occupational Health and Safety Act.

Fair’s fear progressively worsened and, by the fall of 2001, she developed a generalized anxiety disorder. She went on leave and received long-term disability benefits through the Ontario Teachers Pension Plan.

In the summer of 2003, two supervisory positions at other departments became available — including a staff development supervisor position in the same department where Fair was volunteering as part of a work-hardening program and for which the school board invited her to apply. But the board didn’t offer either job to her.

On April 3, 2004, Fair was assessed as capable of gainful employment in a job that didn’t involve liability for health and safety issues. As a result, her long-term disability benefits ended. However, no position was forthcoming from the school board and on July 8, 2004, her employment was terminated.

Fair filed a human rights complaint in November 2004, claiming she was discriminated against based on her disability and she was entitled to reinstatement.

Complaint bogged down

The complaint languished before the Ontario Human Rights Commission and Fair took it to the Human Rights Tribunal in 2009 after the province’s human rights regime was revamped. The school board said both the positions that became available involved some liability for health and safety and the medical information it had indicated that Fair couldn’t have any position with such liability.

The tribunal found the school board had sufficient information that Fair could work in the staff development supervisor position in the same department where she had been volunteering, since she had consulted with her doctor and expressed her willingness to do it.

In addition, though the two positions had some health and safety liability — as all such positions do, to some extent — they were unrelated to asbestos removal, which was tied to Fair’s anxiety, said the tribunal.

Despite the years that had passed since her original complaint, Fair still requested reinstatement as a remedy. The school board contested this as well, arguing it would be unfair to let Fair “lie in the weeds” for more than eight years after her termination and then seek to come back, preventing the board from mitigating its losses.

The school board also noted Fair waited until late 2004 to initially file her complaint, even though the discrimination she claimed to have suffered took place when the two positions were available in the summer of 2003.

Reinstatement reasonable

The tribunal noted the Supreme Court of Canada had confirmed — in its 2004 decision in Alberta Union of Provincial Employees v. Lethbridge Community College — that reinstatement is the preferred option when an employee’s rights have been violated, unless “the employment relationship is no longer viable.”

In Fair’s case, the tribunal saw no evidence the employment relationship couldn’t work, as she testified she held no ill will towards the school board and felt she could return. Also, the individuals responsible for Fair’s termination in 2004 were no longer with the school board.

Fair waited until late 2004 to file her complaint because, at the time of the available positions in 2003, she was still actively seeking a new position with the school board. Her complaint came only four months after she was actually terminated, said the tribunal.

“The fact that (Fair) continued to participate in good faith with the employer in seeking an accommodated position does not give rise to a delay that would now preclude her from obtaining a remedy for the (board’s) infringement of her rights under the code.”

The lengthy delay in the proceedings was not Fair’s fault but rather the commission’s, found the tribunal. When it became evident the commission wasn’t going to get to her complaint before the human rights revamp, she filed with the tribunal, which then took another three years to deal with the case because of “the complexity of the issues.”

In addition, Fair was able to show she had accepted part-time employment after her termination and had continued to look for full-time employment afterwards, meeting her obligation to try to mitigate her losses.

The school board was ordered to reinstate Fair to a position equivalent to the one she left in 2003 — with the only restriction that it shouldn’t involve exposure to health and safety liability similar to that caused by working with asbestos — and an allowance of a “reasonable period (up to six months)” of training.

The school board was also ordered to compensate Fair with wages, benefits and pension contributions she would have earned from the date the staff supervisory position was posted in June 2003 until the date of her reinstatement almost 10 years later — estimated at more than $419,000 in lost wages alone. Finally, another $30,000 was tacked on for injury to Fair’s dignity, feelings and self-respect from the discrimination.

Jeffrey R. Smith is the editor of Canadian Employment Law Today in Toronto, a publication that looks at workplace law from a business perspective. Visit www.employmentlawtoday.com for more information.

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