Recently the Ontario Court of Appeal dismissed an appeal by the employer in Hamilton-Wentworth District School Board v. Fair therefore reaffirming the significant 2013 decision to reinstate an employee after an 11-year absence with full back pay and damages. The case should serve as a warning to employers regarding the scope of accommodation required from them in cases of employee disability.
Employers have a duty to accommodate sick or injured workers to the point of undue hardship. In this case, an employee of the School Board took time off work and was subsequently diagnosed with posttraumatic stress disorder and depression, which resulted in her taking long-term disability leave. After two years the employee’s doctors agreed that she was capable of returning to work, but not in the same position. The School Board, a large and diverse organization, terminated her employment arguing that there was no suitable position available for the employee, given her disability, and the employee filed a complaint with the Ontario Human Rights Commission. The initial application did not resolve the case and the employee made another application regarding the same subject matter after the current amendments to the Ontario Human Rights Code came into effect.
The Tribunal found that the employer breached its duty to accommodate “actively, promptly and diligently” and awarded the employee lost wages, damages, and, more importantly, ordered reinstatement of the employee to a suitable position. In rejecting the appeal, the Court underscored the degree of deference that will be accorded to decisions of the Tribunal as well as its broad authority to remedy human rights violations, which includes the ability to order reinstatement, even after a significant passage of time. In accommodation cases, the employer must work with the employee in good faith and consider all the reasonable possibilities for accommodation, including moving the employee to a separate position, if the original position cannot offer the required accommodation. On appeal, the Tribunal’s decision was held to be reasonable and, as such, not entitled to be heard again.
If you believe that your employer has discriminated against you, do not face your struggle alone. De Bousquet PC has a proven track record of fighting for the rights of employees and we will help you obtain the best results in your case.
Hamilton-Wentworth District School Board v. Fair 2016 ONCA 421