accommodation

Employee Reinstated Eleven Years After Disability Leave

The Ontario Human Rights Tribunal has ordered the reinstatement of an employee, with back pay, over eleven years after she commenced her disability leave.

The employee developed an anxiety disorder related to the stressful nature of her asbestos removal responsibilities. She went on disability leave in the fall of 2001 and received disability benefits until April 2004, when she was cleared to return to work. The employee filed a human rights complaint in November 2004, four months after her employment was terminated.

Evidently, the matter progressed quite slowly. The liability and remedial decisions were not issued until February 2012, and March 2013, respectively. The Tribunal held that the employer discriminated against the employee by failing to accommodate her disability. Had the employer properly done so, the Tribunal concluded that the employee could have returned to work as early as June 2003.

In the remedial decision, the Tribunal ordered the employee reinstated, noting that the passage of time was not sufficiently prejudicial to refuse reinstatement in this case. Indeed, the employee had promptly filed her complaint. In addition to reinstatement, the Tribunal ordered compensation for lost wages, benefits, expenses, and pension contributions dating back to June 2003, as well as a tax gross-up and interest. The Tribunal left it to the parties to calculate the specific amounts owing, including any adjustments for benefits already received by the employee. The employee was also awarded $30,000 for injury to dignity, feelings and self-respect.

This remedial order demonstrates that failure to accommodate disability can be very costly for an employer. It also serves as an important reminder that a significant absence from the workplace may not preclude the remedy of reinstatement in a human rights complaint.

For more information about this decision, please contact Paul Fairweather, Partner.

Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440