In a March 2013 decision that is likely to be challenged in the courts, the Ontario Human Rights Tribunal has ordered the reinstatement of an employee a decade after she went on disability leave, together with loss of wages from June 2003 until the date of reinstatement.
In a 2012 decision in Fair v. Hamilton-Wentworth District School Board, an adjudicator found the school board had discriminated against an employee, Sharon Fair, by failing to accommodate her disability. In particular, in 2001 Fair developed an anxiety disorder as a result of the highly stressful nature of her job, and went on long-term disability. She was subsequently assessed as capable of gainful employment in 2004. From mid 2003 onwards, however, the school board failed to take any steps to offer her available alternative work, even though similar jobs were advertised and Fair underwent job hardening in positions for which the school board was seeking employees.
In March 2013, the adjudicator rendered her decision on the remedy for this case of discrimination. She found that because the employee had commenced her initial complaint with the Ontario Human Rights Commission only four months after her employment was terminated and the delay was largely at the hands of the commission plus Fair had confirmed she was seeking reinstatement when her application was subsequently filed with the tribunal, there was no good reason to not order reinstatement due to the passage of time.
As a result, the school board was ordered to reinstate the employee despite her absence from work for almost a decade. In addition, the school board was ordered to pay Fair's lost wages, benefits, expenses and pension contributions over that period of time, which amounted to more than $400,000 (subject to any employment insurance and related deductions). Finally, the adjudicator awarded Fair another $30,000 as compensation for the injury to her dignity, feelings and self-respect.
Despite the likelihood of an appeal, this is an important decision as it illustrates the potential liability associated with a failure to return an employee to work after a disability leave.
For more information see:
•Sharon Fair and Hamilton-Wentworth District School Board, 2013 HRTO 440 (Ont. Human Rights Trib.).
Catherine Coulter practices employment law with Dentons in Ottawa. She can be reached at (613) 7783-9660 or email@example.com.