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August 07, 2013
Tribunal orders employee reinstatement after 11 years

The Ontario Human Rights Tribunal has ordered an employer to reinstate an employee, including back pay, following an 11.5-year disability-related absence.

The case involved a woman who went on long-term disability leave in late 2001 for a general anxiety disorder that included medical diagnoses of depression and post-traumatic stress disorder.  In April 2004, she was considered medically capable of returning to work but not in her original position.  However, her employer said there was no suitable position for her and subsequently terminated her employment.

She then filed a complaint with the Ontario Human Rights Commission.

Due to changes in Ontario’s human rights legislation and complaint procedures, the Tribunal was not able to review her case until 2009.

In its review of the case, the Tribunal found a suitable position was available as early as June 2003 but had not been made available to the disabled employee.  As a result, it ruled that the employer had breached its duty to “actively, promptly and diligently canvass possible solutions” to meet the disabled employee’s need for accommodation.

In its summary, the Tribunal noted that the primary objective of human rights legislation is the make an individual “whole” following a violation of their rights.  Since the woman could only find casual and part-time employment following her dismissal, it ruled that full reinstatement to a suitable position would be the only effective way of redressing her situation.  As a result, the Tribunal ordered the following:

  • full reinstatement in a suitable position;
  • six months of training in the new position;
  • payment of lost wages dating to the time in 2003 when the first suitable position became available;
  • recognition of pensionable service dating back to 2003, including payment of the employer portion of her pension plan contributions from that time;
  • payment of the employee’s out-of-pocket medical and dental expenses dating to her termination in 2004;
  • compensation for the tax consequences related to her receipt of a lump sum payment at termination; and
  • $30,000 in damages to her dignity.

For plan sponsors in Ontario, the judgement by the Tribunal should serve as a strong reminder that human rights commissions and the judiciary take duty to accommodate provisions regarding the disabled extremely seriously.  Failure to accommodate a disabled person to the point of “undue hardship” could result in substantial award settlements and the tarnishing of the plan sponsor’s reputation.  And, as proven by this case, the passage of time may only increase court awards.

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