Most employers are generally aware that they have a duty to
accommodate ill or injured employees to the point of undue
hardship. The recent decision of the Ontario Human Rights Tribunal
in Fair v Hamilton-Wentworth District School Board 2013
HRTO 440 demonstrates just how seriously an employer should treat
Sharon Fair had been employed by the School Board as the
Supervisor, Regulated Substances, Asbestos when she went off work
in October, 2001 for a generalized anxiety disorder. She was also
ultimately diagnosed with depression and post-traumatic stress
disorder which eventually put her on long-term disability in March,
2002. In April, 2004 after two years on LTD, Fair was assessed as
capable of re-employment but not in her original position. The
School Board took the position that there was no suitable position
available for Fair in light of her limitations and accordingly
terminated her employment in July, 2004.
Fair filed a complaint of discrimination with the Ontario Human
Rights Commission in November 2004. As was its wont, the Commission
had not fully dealt with the complaint when the current Human
Rights Code amendments came into effect, permitting Fair to make a
transitional application respecting the same subject-matter
directly to the Tribunal in 2009.
In its decision on the merits of Fair's complaint issued in
2012 (2012 HRTO 350), the Tribunal held that the School Board had
breached its duty to accommodate by failing "to actively,
promptly and diligently" canvass possible solutions to
Fair's need for accommodation, including reinstatement in
alternative positions. The termination of her employment
constituted unlawful discrimination.
When the parties were unable to agree on the appropriate remedy,
the matter came back before the Tribunal which last month ordered
reinstatement in a suitable position with a reasonable period
(up to 6 months) of training;
payment of lost wages from June 26, 2003 (the date the Tribunal
found a suitable position was first available but not offered to
Fair) until the date of reinstatement (less employment income
received and non-repayable benefits);
recognition of service under the Ontario Municipal Employees
Retirement System (OMERS) and payment of the employer contributions
and additional costs associated with the buy-back of service;
remittance of retroactive payments to the Canada Pension Plan
(or compensation to Fair for any losses arising from lost CPP
payment of Fair's out-of-pocket medical and dental expenses
since her benefits were terminated in August, 2004;
compensation for the tax consequences to Fair of receiving a
lump sum payment, rather than having earned the income over
payment to Fair of $30,000 as compensation for injury to her
dignity, feelings and self-respect; and
payment of pre-judgment and post-judgment interest.
The Tribunal noted that the remedial objective of human rights
legislation is to make the employee "whole". For that
reason, reinstatement was held to be the most effective way of
righting the wrong. This was particularly so in this case, in the
Tribunal's view, because Fair had only been able to find casual
and part-time employment since her dismissal by the School Board.
Given that the employer in question was a school board, a large
employer, it is not difficult to see that reinstatement was a
viable remedy. The question is whether it would have been seen to
be an appropriate remedy if a much smaller employer had been guilty
of discrimination in similar circumstances?
What this means for employers
The important lessons for employers to take away from this
decision are (i) treat the duty to accommodate with the utmost
seriousness at all times, fully consult with the employee and her
medical advisors and carefully and in good faith consider
modifications/alternatives, and (ii) understand that the passage of
time will not necessarily diminish an employee's right to
reinstatement (not to mention significant damages) when she has
been discriminated against.
As of this writing it is unclear if the School Board has or will
be seeking reconsideration/ judicial review of this decision.
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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