Reinstatement is the practice of re-installing an employee to his or her position as it existed prior to termination, or to the fullest extent possible, which may include the preservation of their pre-existing seniority, pension and other benefits.
Reinstatement used to be a remedy rarely awarded in the context of human rights applications made before the Human Rights Tribunal of Ontario (HRTO). That is until the HRTO and Divisional Court’s decision in Fair v. Hamilton-Wentworth District School Board (Fair), which awarded reinstatement to the applicant who had been discriminated against. This decision demonstrated the Tribunal’s willingness to award reinstatement and back pay to employees, regardless of the amount of time elapsed since the employee’s termination. Accordingly, employers are well-advised to give due regard to their obligations under the Human Rights Code (the Code).
Part I of the Code states that every person has freedom from discrimination. To combat discrimination, the Tribunal has broad discretion to use whatever reasonable means necessary to put victims of discrimination into the position he or she would have been in but for the discrimination that occurred. Where monetary compensation cannot meet the HRC’s objectives, the Tribunal may resort to reinstatement as an alternative means to restore the applicant’s rights. The ultimate goal is to make the applicant “whole” to the extent reasonably possible, which includes financial compensation, reinstatement, as well as restitution for injury to dignity, feelings and self-respect.
While reinstatement can alleviate psychological pain and restore economic benefits to victims of wrongful dismissal, its usage is entirely at the discretion of the adjudicator, and is generally deemed to be inappropriate in the following circumstances:
- The break-down of personal relationships between complainant and organization;
- The lack of trust which must exist when the complainant used to occupy a position of power;
- Contributory fault on the part of the complainant justifying a lesser sanction;
- An attitude on the part of the complainant leading to the belief that reinstatement would bring no improvement;
- The complainant’s physical inability to start work again immediately;
- The job no longer exists;
- Subsequent events, such as bankruptcy or layoffs, rendering reinstatement impossible.
An adjudicator may also attach conditions to the reinstatement such as requiring the employee to complete a probationary period, meet an attendance criteria and undertake medical examinations, undergo anger management therapy, or have the employer place a formal warning on the employee’s work record or suspend the employee without pay for a specified period of time.
The decision in Fair established reinstatement as a rule and a viable remedy in most cases, unless the employer can demonstrate undue hardship. In Fair, the respondent challenged the reinstatement order on the ground that the employee was terminated eight and a half years earlier. Regardless, the Tribunal found that the passage of time was not sufficiently prejudicial to the respondent to justify refusing reinstatement, and the applicant in Fair was not only awarded reinstatement, but also additional remedies that accompanied the loss of employment.
In a more recent decision, Macan v. Strongco Limited Partnership, the Tribunal found that reinstatement would not be appropriate, because it was found that the applicant’s disability was a factor, but not the sole reason for her termination.
Hence, while the Tribunal is willing to use reinstatement, it will also consider the circumstances in every case. Outside of the human rights context, such as in wrongful dismissal claims at common law, this remedy will only be ordered in rare situations. Nonetheless, judicial attitudes toward the reinstatement remedy are changing. While it is unlikely a court will grant this remedy outside of very specific circumstances, employers are nonetheless reminded of their duty to accommodate and make sure they are complying with their obligations under the Code.
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