Over three years ago, we blogged about a case where an employee, Sharon Fair, was reinstated after almost a decade had passed since her dismissal, because her dismissal was held to be discriminatory. The specifics of the case can be found on our blog post here but in short, Ms. Fair alleged that she had not been properly accommodated by her employer despite the fact that the stressful nature of her job had led to her disability. Instead, the employer dismissed Ms. Fair while she was on a disability leave when her long-term disability insurance ran out, notwithstanding the availability of other positions to which Ms. Fair could have returned. The dismissal occurred in April 2004 and the ruling of the Ontario Human Rights Tribunal (the “Tribunal”) was in 2012.
The Tribunal ordered reinstatement as well as lost wages over about 10 years, which equated to approximately $450,000. To date, it is the largest award for lost wages in a Canadian human rights case.
Since that time, the case has gone through two appeals, and the decision of the Tribunal has been upheld throughout. The most recent installment of this case was heard by the Ontario Court of Appeal (“ONCA”), which rendered its decision on May 31, 2016, unanimously upholding the decision of the Tribunal.
When the case went before the ONCA, the Ontario Human Rights Commission argued that a significant remedy such as the one ordered by the Tribunal was needed to compensate Ms. Fair for the significant harm caused by the employer in its failure to properly accommodate Ms. Fair over a long period of time.
Does this mean that there will now be a series of rulings whereby reinstatement and large back-pay damages will be awarded? Not likely.
It is precisely the uniqueness of this case that has attracted the attention of many to it. But its uniqueness is such that it may not be replicable in other situations.
The Tribunal’s power to reinstate employees or order back pay is certainly not new but it has rarely been used. Employer counsel have often argued that reinstatement is an impractical remedy after an employment dispute and re-integration of an employee after a long period of absence is a difficult proposition for both the employee and employer.
It was these same factors that the ONCA considered when upholding the reinstatement. They found that the employment relationship between Ms. Fair and her employer was not irreparably damaged. The ONCA was persuaded that the employment relationship was not “fractured” because (i) Ms. Fair testified that she had no hard feelings against her employer; (ii) the individuals who made the decision to dismiss Ms. Fair were no longer with the employer; and (iii) the employer was a large and sophisticated entity.
In this case, reinstatement was a viable option, but in other circumstances – think of sexual harassment or workplace violence situations – the employment relationship may not support reinstatement.
While reinstatement may remain an infrequently used remedy, ignoring it altogether would be a mistake. As such, employers should include reinstatement and substantial lost wages payments in assessing their legal risks and vulnerabilities when faced with a request for accommodation or a claim of discrimination. As always, a proactive approach is the best form of risk management. Careful consideration of accommodation requests, with the help of employment counsel, may well prove to be a very cost-effective exercise.