Discriminating Employer Pays a Decade Later: Reinstated, Decade of Back Wages Ordered
Last winter, the Ontario Human Rights Tribunal issued a decision finding that an employer School Board had violated the Code by failing to accommodate an employee with a disability. The case was called Fair v. Hamilton-Wentworth District School Board. The case was unremarkable from a legal perspective, although it was notable that the discrimination had taken place nearly a decade earlier.
This week, the Tribunal issued its remedial order. Here it is. This decision is a bit of a surprise, given the magnitude of the award, though that is a function of the long period of time it took to litigate the matter, rather than any shocking application of remedial principles.
See what you think.
Facts
The Employee (F) filed her complaint in 2004. She alleged that the employer had discriminated against her on the basis of disability by failing to accommodate her and then dismisses her in July 2004. F suffered from an anxiety disorder that was exasperated by her job, which potentially exposed her to personal liability under health and safety legislation relating to the treatment of asbestos. Her doctor said she could work in a job not related to health and safety, and that did not expose her to this liability.
On a number of occasions, the employer refused to provide the employee with reasonable information necessary for the accommodation process, such as a list of the ‘essential duties’ of jobs. The employer stalled and refused to meet the employee and other representatives who wanted to explore accommodation possibilities. The employer attempted to influence the expert preparing a report on the employee’s restrictions by badmouthing the employee.
Decision
The Tribunal found that the employer did not exhaust its efforts to find a suitable alternative or accommodated job. There was available positions that were suitable for accommodation that the employer did not consider or test. However, rather than place her in one of these accommodated jobs, the employer fired her.
The Remedy
The Tribunal was guided by the golden rule of remedies, which is to put the aggrieved party back into the position they would have been in but for the illegal conduct.
Reinstatement: Nearly 9 years have passed since the dismissal. During that time, the employee has found jobs, but none as good as the one she had or would have had if she had been accommodated. The employee had requested reinstatement in the application, and she still wanted that. The employer objected, arguing that it would be unfair to order reinstatement after 9 years:
The [employer] submitted that it would be unfair to order reinstatement in light of the length of time which has passed. The applicant’s employment was terminated in July 2004; it is now 2013, approximately eightand a half years later. The delay cannot be attributed to the applicant. She filed a human rights complaint in November 2004, four months after her employment was terminated. The complaint had not been dealt with by the Commission by 2008, and therefore the applicant applied to this Tribunal in May 2009. …The delay in processing the application since May 2009 has not been unreasonable, in light of the complexity of the issues.
The Tribunal orders the employee reinstated to a job she can perform at the level she was at when she was fired, with lost seniority and whatever benefits she would have earned over the 9 years. The proper analogy was a labour arbitration in a unionized workplace, where reinstatement is the usual order when a termination is found to have been improper.
Training: Since the employee’s skills will have fallen behind during the almost 9 years since her dismissal, the employer was ordered to provide up to 6 months training to prepare her for whatever job they find for her within the acceptable range of jobs
Lost Wages: The employee here lost wages from June 2003 (the date an acceptable accommodated job became available) to the the date of her reinstatement in 2013. In this case, that amounted to over $400,ooo in lost wages. The employee submitted detailed records of her job searches over the year, so there was no failure to mitigate.
Lost Benefits and Pension Contributions: The employer was ordered to make the employee whole for all contributions to pensions and benefits that she did not receive, but would have received has she been employed throughout.
Tax Implications: On the theory that the employee would have paid less tax had she received her wages on a regular basis rather than as a one time giant sum, the employer was ordered to calculate and reimburse the employee for any extra taxes paid.
Injury to Dignity, Feelings, and Self-Respect: This is a common head of damage in human rights cases. The Tribunal orders an additional $30,000.
Questions for Discussion
The remedy is very costly to the employer due to the length of time it took to litigate the case and get a decision. Do you think it is unfair to the employer that the size of the remedy is linked to the capacity of the Tribunal to complete hearings?
The employer was aware throughout the extended period that reinstatement and back wages could be ordered if a violation of the Code was found. It could have offered to reinstate the employee at any time. Does this influence how you feel about Question 1?
Do you think reinstatement is an appropriate remedy when a decade has passed?
Courts do not order reinstatement when nonunion employees are wrongfully dismissed. One reason why is that courts said it was impractical to order contracting parties to continue a contract after trust and confidence has been lost. Why do you think that human rights tribunals and labour arbitrators (in unionized settings) regularly reinstate employees who were unlawfully dismissed?
Dave Rodgers
March 21, 2013 at 1:08 am
If this arbitrated outcome is able to consider any genuine mal-intent or malice of the employer towards the employee without due regard for their obligation or duty to accommodate than it is a heavy penalty to pay but respectfully appropriate. Possibly setting precedence to motivate employers and their legal representation to accommodate verses litigate at the expense of lengthy arbitration delays. The school board gambled and lost. Was their an alternative solution that would have made the same impact through Wallace damages instead of reinstating the employee 9 years later? Awkward outcome for both parties in my view.
Lungard P. Skarsgard
March 21, 2013 at 6:23 pm
This is a transition case and a good portion of the delay can be attributed to the old commission not properly dealing with this issue. To not consider the timing in determining a proper remedy is misguided. To put that onus on the employer is ridiculous.
Reading the original decision on liability and this decision, it seems like the employee made a conscious decision to enter a different field of work and failed to even obtain any sort viable full-time work. I think the Tribunal Member failed to account for this in her mitigation analysis. It seems it was less about skill-erosion and more about the individual not looking into work that fit within her expertise.
Ed Canning
March 25, 2013 at 8:29 pm
You are mistaken. There was voluminous job search documentation.
Don Jordan
March 22, 2013 at 4:54 pm
I think a good part of the answer can be found in the SCC decision in Blencoe 2000 2 S.C.R. 307
Arch Walker
March 25, 2013 at 2:29 pm
I know the complainant, Ms. Fair, and the outcome of this case is quite in order. She was a mid-level manager at the time. The High level manager who terminated her employment was himself terminated a short time later for conflict of interest reasons. Ms. Fair had no Union to represent her in this affair. She did well.
Arch Walker
President CUPE 4153
Fernando Reis
March 27, 2013 at 2:57 pm
There is a line of cases in labour arbitration where arbitrators find that while there may not be just cause to justify a termination and a lesser penalty would be appropriate, too much “water had flowed under the bridge” to order reinstatement to employment. Some of these cases pertain to alleged patient abuse in nursing homes. While a termination was not upheld, it may not be apprpriate to put the worker back for a number of reasons (see for example “Cassellhome Home for the Aged v. Canadian Union of Public Employees, Local 146 (Morabito Grievance) 153 LAC (4th) 278″. In these situations, arbitrators have ordered compensation in lieu of reinstatement. The parties in “Castellhome” could not agree on the quantum of compensation so the arbitrator ordered an amount in a follow-up decision found at 159 LAC (4th) 251. Typically, the amount is enhanced severance plus 15% for the loss of benfits.