Beware A Failure To Accommodate Employee Ordered Reinstated With Back Pay After An 11.5 Year Absence

Author:Mr David Elenbaas
Profession:McMillan LLP
 
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Most employers are generally aware that they have a duty to accommodate ill or injured employees to the point of undue hardship. The recent decision of the Ontario Human Rights Tribunal in Fair v Hamilton-Wentworth District School Board 2013 HRTO 440 demonstrates just how seriously an employer should treat this obligation.

Background

Sharon Fair had been employed by the School Board as the Supervisor, Regulated Substances, Asbestos when she went off work in October, 2001 for a generalized anxiety disorder. She was also ultimately diagnosed with depression and post-traumatic stress disorder which eventually put her on long-term disability in March, 2002. In April, 2004 after two years on LTD, Fair was assessed as capable of re-employment but not in her original position. The School Board took the position that there was no suitable position available for Fair in light of her limitations and accordingly terminated her employment in July, 2004.

Fair filed a complaint of discrimination with the Ontario Human Rights Commission in November 2004. As was its wont, the Commission had not fully dealt with the complaint when the current Human Rights Code amendments came into effect, permitting Fair to make a transitional application respecting the same subject-matter directly to the Tribunal in 2009.

In its decision on the merits of Fair's complaint issued in 2012 (2012 HRTO 350), the Tribunal held that the School Board had breached its duty to accommodate by failing "to actively, promptly and diligently" canvass possible solutions to Fair's need for accommodation, including reinstatement in alternative positions. The termination of her employment constituted unlawful discrimination.

Remedies

When the parties were unable to agree on the appropriate remedy, the matter came back before the Tribunal which last month ordered the following:

reinstatement in a suitable position with a reasonable period (up to 6 months) of training; payment of lost wages from June 26, 2003 (the date the Tribunal found a suitable position was first available but not offered to Fair) until the date of reinstatement (less employment income received and non-repayable benefits); recognition of service under the Ontario Municipal Employees Retirement System (OMERS) and payment of the employer contributions and additional costs associated with the buy-back of service; remittance of retroactive payments to...

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