The purpose of human rights legislation is to restore a complainant to the position he or she would have been in but for the discriminatory treatment. In seeking to achieve this, human rights tribunals across Canada have the authority to award non-monetary remedies, in addition to monetary remedies, that may have significant consequences for an employer. This wide remedial power was recently displayed by the Ontario Human Rights Tribunal in Fair v. Hamilton-Wentworth District School Board 1, in which the Tribunal ordered that the applicant employee be reinstated almost a decade after her employment was terminated by the employer.
The applicant held the position of Supervisor, Regulated Substances, Asbestos. In Fall 2001, she developed a generalized anxiety disorder and was subsequently diagnosed with depression and post-traumatic stress disorder resulting from a fear that she would make a mistake and face personal liability for a breach of the Ontario OccupationalHealth and Safety Act. After going on long-term disability benefits, she was assessed as capable of gainful employment in 2003 but the employer determined that it was unable to accommodate her disability and she was terminated when her LTD benefits ended in 2004. The Tribunal disagreed with the employer, finding that the employer failed to take adequate steps to canvas possible solutions to her need for accommodation. The Tribunal concluded that the employer should have sought clarification of the medical evidence it relied on and the employer had positions available that the applicant was suitable for.
The applicant sought, as part of her remedies, to be reinstated, not having been able to secure suitable alternative employment since being terminated by the School Board. In an unexpected move, the Tribunal agreed that reinstatement was an appropriate remedy in the circumstances and found that it would not create a hardship for the employer, despite the very long passage of time. In coming to this conclusion, the Tribunal held that the applicant would have still been employed by the School Board if not for the discrimination and considered that those who were responsible for making the original decisions were no longer working for the employer. In addition to reinstatement, the Tribunal also ordered, among other things, that the employer pay the employee close to 10 years of lost wages and $30,000 for injury to dignity, feelings and self-respect. This case is being judicially reviewed, but serves as an important reminder to employers of the potential costs and risks associated with discrimination in the workplace.
An order for reinstatement can be very costly and often creates difficulties for an employer; however, this will not necessarily preclude the human rights tribunal from applying this remedy in the event of discrimination. Some factors that are commonly considered in determining whether reinstatement is an appropriate remedy include:
- the effect it may have on other employees
- whether there is animosity between the parties
- the status of trust between the parties
- risk that there has been irreparable harm to the employment relationship
- the size of the work environment
- the existence of any other barriers to reinstatement
Reinstatement is not a remedy commonly ordered by human rights tribunals, especially in the case of a non-union employee and after a long gap in time. Nonetheless, this is not the first time reinstatement has been ordered by a human rights tribunal following a period of delay. In Kalyn v. Vancouver Island Health Authority (No. 3) 2, the British Columbia Human Rights Tribunal ordered the employer to reinstate a former employee almost two years after she had been terminated. The employer had found that she had committed a breach of confidentiality and was gossiping and terminated her employment. The Tribunal saw things differently, concluding that the employee’s sex was a factor in the decision to terminate her, and ordered that the employer reinstate the employee to her former position despite the fact that her position had already been filled by someone else.
Although reinstatement is a rare remedy, these cases highlight the extensive remedial powers available to human rights tribunals across Canada and the significant consequences, both monetary and non-monetary, that an employer may face in discrimination claims. Employers are encouraged to treat all complaints of discrimination seriously and ensure all possible accommodation options are promptly and diligently considered before making the decision to terminate an employee. Failure to do so may cost an employer a lot, even many years later.