CCPartners has previously
blogged about the controversial and precedent-setting Tribunal
decision in Fair v. Hamilton Wentworth District School Board where
Sharon Fair was reinstated to her position with nine years of
back-pay and $30,000.00 in general damages after the Tribunal
determined that she had not been properly accommodated by the
School Board. The Divisional Court upheld the Tribunal's
decision and recently, the Ontario Court of Appeal also sided with
Ms. Fair in dismissing the School Board's further appeal (click
HERE for the Court of Appeal decision).
Sharon Fair, a supervisory employee with 15 years' service,
was off on a medical leave from 2001 until 2003 for an anxiety
disorder when her physician determined she could return to work
with certain medical restrictions. The School Board terminated her
employment instead of offering her one of two supervisory positions
the Tribunal found were available and fit the medical restrictions
provided by the treating physician. The Tribunal found that Ms.
Fair had appropriately participated in the accommodation process
but that the School Board had not met its accommodation obligations
by actively and diligently assessing available roles for Ms. Fair.
The Tribunal ordered Ms. Fair's reinstatement with full back
pay, having found that none of the delays in the Tribunal
proceedings could be attributed to Ms. Fair.
The Court of Appeal found no error in either the Tribunal's
or Divisional Court's assessment of the facts, law and remedy
in the circumstances. While the remedy of reinstatement was
acknowledged to be rarely sought or awarded by the Tribunal, the
Court of Appeal found no error in the Divisional Court's
observation that reinstatement is used in the labour relations
context by arbitrators and therefore could fall within the broad
remedial authority/discretion vested with the Tribunal. Both levels
of court were satisfied with the Tribunal's analysis of the
appropriateness of reinstatement in this case as well as the order
for nine years of back pay.
It is not known yet whether the School Board will seek leave to
appeal to the Supreme Court of Canada and CCP will keep you updated
on any further developments in this precedent-setting decision.
This case is a stark reminder to employers that they must be
vigilant in their attempts to accommodate employees who are ready
to return to work with or without medical restrictions by
considering all possible avenues that can be used to accommodate
disabled workers. Failing to do so could result in significant
liability if the Tribunal deems a reinstatement to be reasonable
even where a significant passage of time is attributable to the
human rights process itself and not any blameworthy conduct on the
part of the employer. Click HERE for a list of lawyers from the CCP team
that can assist employers with all areas of workplace
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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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