Thus far, the spring of 2013 has seen a number of significant decisions on remedy issued by the Human Rights Tribunal of Ontario (“the Tribunal”). From the standpoint of employers, the question is whether they amount to a departure from the Tribunal’s jurisprudence.
The decision in Fair v. Hamilton-Wentworth District School Board 2013 HRTO 440, released in March 2013, involved an employer’s failure to accommodate disability-related needs. The applicant developed generalized anxiety disorder, a reaction to the highly stressful nature of her job, and was subsequently diagnosed with depression and post-traumatic stress disorder. At the time of the onset of her disability in October 2001, the applicant had more than 15 years of service and performed a supervisory position. Her eligibility for long-term disability (LTD) benefits ended in April 2004. Her employment terminated July 8, 2004. In February 2012, the Tribunal found the employer liable for failing to accommodate the applicant and, in particular, for failing to consider her other options available in the workplace, even if they arose while she was receiving LTD benefits.
The applicant – quite unusually – sought reinstatement having been unable to secure full-time employment following her dismissal. The Tribunal found, on a balance of probabilities, that the applicant would have continued to be employed had her employment not been terminated contrary to the Human Rights Code (“the Code”). Despite the lengthy passage of time, the Tribunal concluded she should, in fact, be reinstated with full back pay, less any income and non-repayable benefits she received. The full back pay award, included not only nine years of lost wages, but restoration of seniority, banked sick days, and pension and CPP contributions retroactive to June 2003 when the employer did not alert her to a vacant supervisor position. The Tribunal ordered the employer to reimburse the applicant for out-of-pocket medical/dental expenses and to calculate the tax consequences arising from receiving multiple years of wages in a single lump sum and to compensate her accordingly. Finally, the Tribunal ordered $30,000 as compensation for the injury to the applicant’s dignity, feelings and self-respect and interest on the damages payments.
It is rare for an applicant to pursue reinstatement almost a decade after departing the workplace. Another Tribunal decision released May 16, 2013, Macan v. Strongco Limited Partnership 2013 HRTO 841, declined to award reinstatement noting as follows: “In cases in which an applicant has been ordered reinstated, the applicant has been a unionized employee for a large employer or has been employed in a relatively unskilled position”. Also noted was that reinstatement may be limited to cases where a discriminatory reason is the sole reason, not just a factor, in the termination. In any event, the Fair v. Hamilton-Wentworth District School Board decision is a reminder of the substantial liability that can flow from breaches of the Code where an applicant is insistent on her right to reinstatement. It also is a reminder that the awards for injury to dignity, feelings and self-respect continue to creep higher. This may not be the final decision in this matter as it is under judicial review.
The decision in Morgan v. Herman Miller Canada Inc. 2013 HRTO 650, released in April 2013, involved allegations of discrimination based on colour and reprisal. The applicant alleged discriminatory assignment of tasks and discipline, and that when he raised concerns about discrimination, his employment was terminated in retaliation. The applicant believed he was assigned menial tasks, overworked and treated as a “black slave”. The Tribunal disagreed finding no discrimination in the tasks assigned to the applicant or in the discipline applied by the employer. This was not the end of the analysis though. The Tribunal went on to find that the termination decision was made as a reprisal because he had raised issues of harassment and discrimination. Although the employer had considered the applicant for termination as part of a restructuring earlier, the Tribunal concluded the decision was made after he raised allegations of harassment and discrimination and because he threatened to “sue” the company. Instead of investigating the allegations, the employer chose to terminate his employment. It didn’t matter that there was no substance to the allegations, what mattered was the employer’s reaction in breach of the Code.
The Tribunal awarded the applicant, an installation scheduler with less than three years of service who did not seek reinstatement, 14 months of lost wages and $15,000 as damages for dignity, feelings and self-respect, plus interest. The Tribunal also ordered the employer to review and revise its human rights policy and to distribute it to employees and to train all managers and human resources employees on the revised human rights policy. Last, the Tribunal ordered the employer’s former Vice-President Finance/Operations to complete the Ontario Human Rights Commission’s eLearning module, Human Rights 101, as he was no longer employed there.
The quantum of the Morgan v. Herman Miller Canada Inc. decision is substantial and reinforces that the Tribunal will not consider the usual reasonable notice concepts in awarding damages for lost wages following a discriminatory termination of employment. Also important is that the employer here had not actually engaged in any discrimination – despite the applicant’s belief otherwise – prior to the dismissal.
These Tribunal decisions are a reminder of the importance of procedural duties when it comes to allegations of discrimination contrary to the Human Rights Code. Employers must canvass all possible options where accommodation is required. Employers also must take allegations of discrimination and harassment seriously – even when they are confident there is no basis for them. To do otherwise is a risky, and potentially very expensive, proposition.
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