If the duty to accommodate is a well-known concept, the duty to inquire is a fuzzy notion. The principle is that an employee seeking accommodation for a disability is under a duty to disclose sufficient information to her employer to enable it fulfill its duty to accommodate. However, current decisions from various tribunals have shown, in accordance to the previous rules, that an applicant will not be held to a high standard of clarity in communication.
Reinstatement is the practice of re-installing an employee to his/her position as it existed prior to termination, or to the fullest extent possible, which may include the preservation of their pre-existing seniority, pension and other benefits.
In a recent case titled Merrifield v. Canada (Attorney General), the Ontario Superior Court of Justice affirmed that the tort of harassment is a valid cause of action and may be pleaded against an employer by an employee.
An employee who has been dismissed without cause is entitled to damages based on the income that individual would have earned during a period of reasonable notice. "Reasonable notice" will differ from case to case, but is determined by a variety of factors at the judge’s discretion. When calculating the income that the employee is entitled to, many factors must be assessed, such as bonuses.
In a recent case titled Doyle v. Zochem Inc., the Ontario Court of Appeal upheld a decision to award both moral damages and damages pursuant to the Human Rights Code without subtracting one from the other. This case involved a female supervisor who was demeaned and belittled by a male manager in front of the rest of her work staff. Upon filing a complaint for sexual harassment, the employer terminated her without cause.
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