Human Rights.

• Author: McKay-Panos, Linda

When is Reinstatement Possible for Employment Discrimination?

A worker experiencing discrimination must choose the legal avenue that will give them the result they want. For example, if pursuing the matter in court, the worker will have to start a contract claim (e.g., wrongful dismissal) or tort claim. One cannot sue in tort for discrimination, but one can sue in tort for the intentional infliction of mental suffering. The usual remedies available to the worker under tort or contract claims are money damages:

* money in lieu of notice;

* aggravated damages (if the employer terminated the plaintiff in a way that caused mental distress); or

* punitive damages (awarded in extreme cases to punish the employer for harmful behaviour).

All of these remedies have one thing in common: the court can only award money to address the losses suffered by the employee.

There are times when a worker may want money compensation, but also an apology or for the employer to introduce a discrimination policy.

In some cases, the worker may want their job back, but without having to continue to experience the discriminatory behaviour. There are ONLY two ways that a worker can get their job back:

1. For union workers, if the collective agreement allows for reinstatement; or

2. If a complaint is started under human rights legislation or occupational health and safety legislation that allows for reinstatement, and the complainant requests reinstatement. Human rights commissions usually have the ability to grant reinstatement. However, reinstatement is not possible in every situation and will depend largely on the facts of each case.

The recent Pratt v University of Alberta (Pratt) case may open the doors wider to the possibility of reinstatement. Carmen Pratt made a human rights complaint in June 2013 alleging discrimination at work under section 7(1) of the Alberta Human Rights Act (AHRA) (Pratt at paras 1, 4). The Alberta Human Rights Tribunal heard Pratt's complaint. Chair D. Jean Munn, Q.C., held that the employer, the University of Alberta (U of A), had discriminated against Pratt on the ground of mental disability.

Further, Chair Munn held that the U of A failed to acknowledge its duty to accommodate (Pratt at para 18). After the complainant has established prima facie discrimination, the burden shifts to the respondent (the employer, in this case) to show that the treatment of the complainant was a bona fide occupational requirement or otherwise was...