2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
An Employee With a 14 Year Absence Reinstated With Full Back Pay Plus Interest
In May of 2016, in Fair v Hamilton-Wentworth District School Board, 2012 HRTO 350, an Ontario Court of Appeal upheld a Human Rights Tribunal with important implications for employers in relation to the duty to accommodate and the jeopardy of reinstatement.
Ms. Fair, who suffered from generalized anxiety disorder, depression and Post-Traumatic Stress Disorder, and held a supervisory position with the Hamilton Wentworth District School Board [the “Board”] in regulating hazardous substances, took medical leave in October 2001. By 2003, Ms. Fair indicated that she was ready and willing to return to work, with the condition that she be given a position where she would not be in charge of employees’ health and safety or exposed to personal liability (due to the stress caused by such acute responsibility). The Board responded that it could not identify an alternate position to accommodate Ms. Fair and it terminated her employment on July 8, 2004.
The Ontario Human Rights Tribunal [the “Tribunal”] invoked the rarely used remedy of reinstatement to return an employee with full back pay after 14 years. The Board was found to have failed in its duty to accommodate its employee.
The Tribunal underlined that the duty to accommodate an employee imposes obligations on both the worker and Management. An employer must prove its efforts to identify suitable alternative employment and verify its inability to accommodate to the point of undue hardship. An employee must provide sufficient proof of her disability, including limitations and/or restrictions and cooperate in efforts at accommodation. The Tribunal held that Ms. Fair met her obligations, but her employer failed in its duty to accommodate.
Specifically, the Board’s failure was found because it had not:
- adopted an active role regarding possible accommodation solutions;
- met with a Vocational Rehabilitation Consultant or provided Ms. Fair with a description of her essential duties when requested; and
- met with Ms. Fair in a timely manner to review her needs or obtained its own expert opinion, and instead it had improperly tried to influence Ms. Fair’s expert.
The Tribunal concluded that the Board was never open to accommodating Ms. Fair in another position, in light of the fact that other positions did exist but they were not adequately explored or considered. The Board incorrectly relied on the fact that all employment positions had some risk of personal liability.
The Tribunal’s Order reinstated Ms. Fair. In making this order, the Tribunal took the position that the Board is a very large employer and reinstatement would not cause any hardship despite the 14-year gap in employment. The Tribunal also rejected the employer’s argument that the passage of time precluded or rendered unfair her return. The Tribunal noted that the delay in processing her complaint was not her fault and Ms. Fair had acted diligently throughout the process.
What This Means For Employers
An employee who brings a human rights complaint can seek reinstatement as a remedy, even if there has been a long absence from the workplace.
An Employer should consider that:
- The law requires human rights’ accommodation assessments to be conducted on a case-by-case basis. The duty to accommodate is complex and often requires expert analysis and advice to ensure compliance (legal, medical, financial).
- An employer has a duty to accommodate an employee up to the point of undue hardship. Undue hardship is a high threshold to sustain a defence, will be assessed based on the particular context in each workplace, and is based on the resources of each unique employer individually.