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Dismissed For Discriminatory Reasons? You Might Be Able To Get Your Job Back

Our court system recognizes that when a (non-union) employee is unjustly or wrongfully terminated, the aggrieved individual is entitled to monetary relief. While money is an imperfect measure for the loss of one’s job or self-esteem, for better or worse, it is the prevailing remedy in our judicial system. Courts do not force an employer to apologize for wrongdoing, take back an offensive termination letter, or to reinstate an employee to their job.

By contrast, in the unionized context, reinstatement is a common remedy awarded by labour arbitrators when an employee has been unjustly terminated in breach of a collective agreement.

Similarly, the Ontario Human Rights Tribunal can award an assortment of remedies to individuals whose human rights have been infringed by an employer. Such remedies which may include requiring an employer to issue an apology, adopt anti-discrimination policies, and take specific measures to deter discrimination in the workplace. The Tribunal also has the power to require an employer to reinstate an employee back to their job. Historically, reinstatement has been issued sparingly by the Tribunal.

Earlier this year, in the contentious decision of Hamilton-Wentworth District School Board v. Fair, [2016] ONCA 421, the Ontario Court of Appeal endorsed a decision by the Ontario Human Rights Tribunal, which it ordered an employer to reinstate a dismissed employee with full back pay, more than 10 years after termination. Fair involved an employee who suffered from depression and post-traumatic stress disorder. After a prolonged absence, she was cleared to return to work. The School Board, however, terminated her employment.

Fair brought a human rights application against the School Board challenging her dismissal. She requested, among other things, that she be reinstated back to work. Upon finding that the School Board could have accommodated her into several appropriate positions, the Tribunal held that the School Board failed to reasonably accommodate her disability. By way of remedy, the Tribunal ordered the School Board to reinstate Fair with more than 10 years of full back pay and retroactively credit her with pensionable service under the pension plan. In addition, the School Board was ordered to pay Fair $30,000 in general damages. Retroactive wage compensation in this case amounted to over $400,000 plus interest. The fact that the employee had not returned to work in over a decade did not alter the Court’s view that reinstatement was an appropriate remedy.

The Fair decision confirms the breadth of remedies that may be available to complainants for infringement of their rights under the Human Rights Code. For dismissed employees, a lengthy passage of time will not by itself preclude reinstatement (with back pay) as a possible remedy. There may be circumstances in which reinstatement is not an appropriate remedy, for instance, if there is ill-will or animosity between the parties. However, following the endorsement from the Ontario Court of Appeal in the Fair decision, we can expect to see more reinstatement orders from the Tribunal as well as higher wage compensation awards than we have seen in the past. Despite these broad powers, the Ontario Human Rights Tribunal does not have any authority to award compensation for a complainant’s legal fees, which can be significant.

The available remedies through the human rights tribunal system may impact one’s preferred avenue for redress. Aggrieved employees should consult with an employment lawyer about the most appropriate legal venue in their circumstances.