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.
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.
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 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?