Workplace Wire

In a sweeping remedial decision the Human Rights Tribunal of Ontario (HRTO) has ordered a non-union employee reinstated to employment after a nearly 10 year absence.

The case underscores the importance of properly accommodating an employee’s disability related needs and proceeding cautiously when approaching the termination of such an employee.

The HRTO found in a previous decision on the issue of liability that the employer had discriminated against the employee because of disability contrary to ss. 5 and 9 of the Ontario Human Rights Code, by failing to accommodate her disability-related needs from April 2003 and then by terminating her in July 2004.

As terms of the reinstatement, the HRTO also stipulated, among other things, that the employer would have to “provide a reasonable period (up to six months) of training, as required to prepare the applicant for the position”.

In addition to the reinstatement order, the HRTO awarded the employee:

• lost wages from mid 2003 until the date of reinstatement;
• reinstatement of her years of pensionable service and additional costs associated with the buy-back of service;
• retroactive payment to the Canada Pension Plan (CPP), or compensation for any losses arising from the lost years of CPP pension contributions;
• payment for out of pocket medical and dental expenses which would have been covered by the applicable benefit plans;
• compensation for the tax consequences flowing from the money owing as a result of the decision;
• $30,000 as compensation for “injury to her dignity, feelings and self-respect”;
• pre-judgment interest on all monetary damages; and
• post-judgment interest on all damages from the date of the decision.

We will be reviewing this decision and blogging on it in more detail in the near future, with a focus on the remedy of reinstatement which was awarded in this case.

In the interim feel free to direct any questions to Kevin MacNeill at 416-360-2602 or kmacneill@heenan.ca