Safety supervisor at school board awarded job back after being diagnosed with PTSD
After a decade-long dispute over whether an employee’s anxiety should be accommodated, the Ontario Human Rights Tribunal has ordered an Ontario school board to give Sharon Fair her job back — along with nine years of lost pay and compensation totaling $480,000.
The ruling is the largest award ever received for back pay in a Canadian human rights case.
Fair, an occupational health and safety supervisor for the Hamilton-Wentworth District School Board, developed a generalized anxiety disorder as a result of her job, which included asbestos removal from the region’s schools. Fair feared if she made a mistake, she could be held personally liable under the Ontario Health and Safety Act.
She was subsequently diagnosed with post-traumatic stress disorder and went on long-term disability leave in 2001.
Once Fair was able to return to work in 2004, the school board failed to reinstate her, despite positions being available. The head of the board’s plant services argued if Fair could not accept the health and safety risks of her previous position, she could not accept the risks of any other supervisory job because every supervisor was responsible for health and safety.
In February 2012, an adjudicator ruled that the school board had discriminated based on disability and in March 2013, the tribunal ruled Fair should be reinstated, along with pay.
The decision is being appealed by the board, which means Fair will not receive compensation or return to work until the case is heard.
The tribunal’s decision is out of the ordinary for numerous reasons, said David Elenbaas, co-chair of the employment and labour relations group at McMillan in Toronto.
The first is that reinstating someone with a specific employer after such a long absence is certainly out of the ordinary. In most other cases where there’s been a significant absence, it would be hard to establish a working relationship so the person would just be compensated financially for the loss of work.
“That’s not what the tribunal chair did here,” Elenbaas said. “She figured that even though the absence was significantly long, because it’s a big employer, they could accommodate her and put her back in.”
There probably won’t be another case with such a lag in time between filing and decision in the future, Elenbaas said.
“Under the old system, the Human Rights Commission used to have to investigate these complaints, and they were slow,” he said.
It looks like the commission took four or five years to investigate the case then the system changed and the case went to the tribunal as a result.
“We should not see that kind of a lag between the date of an application and the date of a decision going forward, so it’s an anomaly in that respect.”
The case highlights how essential training for stressful positions is in the workplace, said Catherine Coulter, a lawyer with Dentons Canada, based in Ottawa.
“You’re talking about a pretty tricky area here, where there’s potential liability on behalf of the person representing the school board — in this case, Ms. Fair — as well as the school board itself,” she said.
Fair had expressed concerns throughout her work tenure about that liability, said Coulter.
“Where there’s a potential for liability that rests on the shoulders of an employee who then has stress related concerns... you really have to make sure you’re communicating fully with your employee, that you’re training your employee as well as you possibly can so they can deal with those concerns,” Coulter said. “Frankly, if concerns are expressed by the employee about personal liability or an inability to do the job any longer, you have to be responsive to that.”
Moreover, this employer had a responsibility to return the employee to the workplace when she was ready, said Coulter.
Fair and her doctors indicated she was ready, but that she wasn’t able to go back to that job. Rather than working with her to find another suitable position — even though there were jobs available — the employer failed to accommodate.
“I think they simply hoped that she would go away over time and, of course, she didn’t,” said Coulter.
Decision-makers outside Ontario not obligated to follow ruling
Human rights complaints filed pursuant to the Nova Scotia Human Rights Act are generally not adjudicated as quickly, said Rick Dunlop, partner at Stewart McKelvey in Halifax.
“Historically, the time between the filing of a human rights complaint and a Board of Inquiry issuing a decision has been several years,” he said.
Part of the reason the award was so substantial in this case was due to the long wait for the complaint to be adjudicated.
“It is possible that a Nova Scotia Board of Inquiry could make a similar decision to that which was made in Fair v. Hamilton-Wentworth District School Board,” said Dunlop, but adds Nova Scotia employers, “can take limited comfort from the fact that the Nova Scotia Board of Inquiries have not ordered reinstatement as often as human rights adjudicators in other Canadian jurisdictions.”
Nova Scotia adjudicators, or those in other provincial jurisdictions, are not obligated to follow this decision.
“Employers should expect that the case will be brought to their attention by complainants’ counsel and if inclined, the decision could be applied,” said Dunlop. “Accordingly, Nova Scotia employers should take note and expedite the adjudication of human rights complaints as quickly as possible.”
