Apr 15, 2013

Time heals all wounds – even employment ones?

School board on the hook for more than $400,000 when worker reinstated – after more than a decade off the job

By Jeffrey R. Smith

When an employee wins a case against an employer — whether a complaint, grievance or lawsuit — the remedy can be reinstatement of the employee to her job if the circumstances warrant.

Most courts, arbitrators or tribunals would find this to be the ideal solution. Obviously, this wouldn’t be a good solution if the relationship between the worker and the employer was irreparably broken. But should the passage of time be a legitimate reason reinstatement won’t work, or should an employee absent for a long period of time still be allowed back?

Last month, the Ontario Human Rights Tribunal made an interesting decision in Sharon Fair and Hamilton-Wentworth District School Board by reinstating an employee after a finding of discrimination. The employee had to go on long-term disability (LTD) leave from her stressful job with a school board when she developed anxiety.


Three years after going on leave, the employee was medically assessed and declared capable of “gainful employment.” However, the school board didn’t take any action — such as investigating alternative jobs for her, even though it was recruiting for positions similar to the employee’s and she underwent a job hardening program for those positions.

The tribunal found the school board had discriminated against the employee and ordered the school board to reinstate her with compensation for lost wages, benefits, expenses and pension contributions from when she went off work. What made the decision to reinstate the employee a little unusual was that 10 years had passed since the employee had been off work.

The tribunal granted reinstatement because that’s what the employee asked for and the passage of time wasn’t her fault. She had filed her complaint not long after her employment was terminated and the delay was the fault of the human rights commission. As a result of the lengthy process, the school board was on the hook for more than $400,000 in wages and benefits, in addition to $30,000 for injury to dignity, feelings and self-respect.

That’s a lot of money, and it can’t be easy to bring an employee back to work after such a long absence. It was the employer’s fault it didn’t take action to bring the employee back to work when it was possible, thus leading to the discrimination complaint. But should it have to pay for the length of time it took for a decision in the case to be made? Should it be expected to accommodate the employee back into it workplace after such a long time, when so much may have changed?

For more information see:

• Sharon Fair and Hamilton-Wentworth District School Board, 2013 HRTO 440)

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at or visit

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