Reinstatement of Dismissed Employees: Is Hamilton-Wentworth District School Board ats “Fair”?

For some employers, the sole focus when terminating employees is mistakenly upon paying adequate termination pay, severance pay or their equivalents under statute. Other Employers may feel smug knowing that they should also be concerned about having to provide a terminated employee with pay-in-lieu-of-notice at common law, which is typically much higher than the amounts for which the employer is liable to pay under statute.

However, truly savy employers will know that dismissed employees have available to them remedies which are potentially far more damaging to employers’ interests, namely, those that are available under Human Rights Legislation.

That an Order can be made by the Human Rights Tribunal of Ontario reinstating an employee’s position after termination is surprising to many employers, especially where the employee has been away from work for approximately one decade.

However, that’s exactly what happened in the recent decision of Fair v. Hamilton-Wentworth District School Board. In that case, the employee worked with the employer from 1988 until 2001, at which point she went on disability for stress related conditions. In 2003, she sought to return to work in a different position (as the position that she had left was a cause or the cause of her conditions), but the employer would only allow her to return to her old position. In 2004, her employment was terminated.

In deciding that the employee had been subjected to discrimination based upon her disability, the Tribunal ordered reinstatement of the employee to a suitable and comparable position as soon as possible. Additionally, the employer was ordered to pay or do the following:

1. $30,000 for hurt feelings;
2. $419,283.89 representing wages the employee would have received between June 26, 2003 and the date of the decision;
3. any tax consequences as a result of the lump-sum payment;
4. any out-of-pocket medical and/or dental expenses incurred since termination;
5. reinstate years of service with the pension provider, and make the employer pension contributions that it would have made if the employee had not been terminated;
6. retroactive payments to the Canada Pension Plan, if possible, or, pay for any losses arising from the loss of the CPP pension contributions; and
7. pre-judgment interest from 2004 onwards on all monetary awards above at the rate of 2.3% per annum.

While it is believed that the case is currently under appeal, employers should nonetheless be wary of the potential remedies available to their employees under theHuman Rights Code (Ontario), and should always consult with their lawyers prior to making a decision to terminate an employee. Safeguards can be implemented that might avoid the result which occurred in Fair.