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Employer failed in duty to accommodate by not considering employment beyond pre-injury position

In Fair and Hamilton-Wentworth District School Board (decision found here), the Ontario Human Rights Tribunal (“Tribunal”) provides a useful guide for employers to follow in determining how to return an employee to the workplace after an extended absence. The Tribunal held that if an employee can’t be returned to his/her pre-injury position, then the employer must “actively, promptly and diligently canvass possible solutions to the employee’s need for accommodation” which includes looking at other available jobs that meet the employee’s restrictions.

The Applicant was employed as a Supervisor, Regulated Substances, Asbestos, with the Respondent School Board. The Applicant became worried about personal liability that she could be exposed to under the Ontario Occupational Health and Safety Act (“OHSA”) after the Ministry of Labour became critical of how she was doing her job. The Applicant was diagnosed with depression and post-traumatic stress disorder and she went off work in receipt of long-term disability benefits for two years from the Ontario Teachers Insurance Plan (“OTIP”)

After two years, it was determined that the applicant could not return to her pre-injury position because she could not handle the pressures of liability that came from the OHSA and that could be attached to a Supervisor. However, the Applicant could still do other employment. The Respondent took the position that the Applicant had failed to give it appropriate medical information and that it did not have to accommodate the Applicant because any supervisory or comparable job would still have the potential for personal liability under the OHSA and therefore it terminated the Applicant’s employment.

Almost eight years passed from the time the Applicant filed her human rights complaint to the date of the decision.

The Tribunal held that the Applicant had kept the Respondent up to date with respect to her medical status and the Respondent knew that her primary restriction was not to be returned to a job with the same level of liability.

The Tribunal then held that the Respondent failed to actively, promptly and diligently canvas possible solution to the Applicant’s need for accommodation including other positions that were open at this time which she was capable of performing. In so doing, the Tribunal made the following conclusions:

  • The Respondent wrote in the Applicant’s application for LTD benefits that it was difficult to accommodate non-union employees and the Tribunal held that “the Respondent was not open to adopting an active role in canvassing all possible accommodation solutions from the outset”.
  • The Respondent failed to meet with OTIP to discuss a return to work or obtain any information that could assist a return to work.
  • The Respondent failed to provide the Applicant with the essential duties of her position for the purposes of considering accommodation.
  • The Respondent delayed in meeting with the Applicant for months in order to discuss available job opportunities.
  • The Respondent failed to secure an expert opinion or advice when ambiguities in the medical evidence called for it.
  • The Respondent was not open to accommodating the Applicant in another position other than her pre-injury position. The Tribunal noted that there were at least three jobs open at the Respondent at the material times that the Applicant could have performed on a temporary or permanent basis within her restrictions.

The Tribunal gave the parties a chance to address the issue of remedy given the significant passage of time. Unfortunately, this process did not work out. The Tribunal had to intervene, and on March 14, 2013, issued a remedial order.

The Tribunal has a broad remedial power to order monetary compensation, restitution or other public interest remedies to promote compliance with the Code. This can include ordering the Respondent to pay financial compensation to the applicant, and make orders to prevent further human rights violations. if the tribunal finds that discrimination did not occur, it will dismiss the application.

In this case, the tribunal confirmed that the discrimination occurred, that the employee should be reinstated in her employment with the employer and she should be financially compensated for all losses arising from the breach of the Code.

The employee was to be reinstated into a suitable position that is equivalent to the level she was, when she was last employed, with the training period of up to six months, as required.

The employer had to pay lost wages for the entire period of unemployment or underemployment resulting from the discriminatory termination. The employee’s calculation showed a total wage loss from 2003 to 2012 as $419,284. This was reasonable and was not contested.

Adjustments had to be made from the lost wages. This involved recalculating pension adjustments, CPP adjustments, health benefits, insurance benefits and tax consequences.

The employer had to pay the employee damages for injury to dignity, feelings and self-respect. The employee set out her feelings of victimization and vulnerability, and described her experience as humiliating, degrading and very hurtful.

The employer had to pay the employee out-of-pocket medical and dental expenses which would have been covered by the plans had she been employed. Since the employee would have been covered by these plans had she been working with the employer, the employer had to pay these.

The employer had to pay interest on all the damages from the date of the original complaint to the date of the decision. The employer had to pay pre-judgment interest since 2004 at the rate of 2.3 percent per year.

The employer had to pay interest on all the damages after the decision. The employer had to pay post-judgment interest as of the date of the decision at a rate of 3.0 percent.

This case demonstrates the need for employers to be willing to look outside the confines of an employee’s pre-injury position and consider alternative positions as part of the duty to accommodate.

Simon Heath LL.B, M.I.R.
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Simon Heath

Employment Lawyer and principal at Heath Law, Employment Lawyers
Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more
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