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Posts tagged: disability

Ontario Court of Appeal Upholds Decision to Reinstate Disabled Employee with 10 Years Back Pay: Will Human Rights Litigation Ever Be the Same Again?

By , June 15, 2016 10:01 am

I predict a recent Ontario Court of Appeal (the “OCA”) decision will have a significant impact on human rights litigation. In particular, I suspect disabled employees will start asking employers to find or create alternative positions for them if they cannot perform their job duties because of a disability, and terminated employees will start asking adjudicators to reinstate them with full back pay.

Is an Employer Required to Find or Create an Alternative Position for a Disabled Employee?

In Hamilton-Wentworth District School Board and Sharon Fair the OCA stated that an adjudicator’s decision to reinstate an employee and order the employer to pay 10 years back pay was in keeping with an earlier Supreme Court of Canada decision. In the earlier case, the court articulated an employer’s duty, short of undue hardship, to arrange the employee’s workplace or duties to enable the employee to work, as follows:

Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties – or even authorize staff transfers – to ensure that the employee can do his or her work, it must do so to accommodate the employee. [Emphasis added.]

In the Hamilton-Wentworth case the disabled employee could not perform the duties of her position but she could perform the duties of another position. An adjudicator with the Ontario Human Rights Tribunal (the “Tribunal”) found that there would have been no need for the School Board to create a surplus position, as the financial resources existed for one position, or to displace an incumbent employee, as another position was vacant.

The OCA also stated: “…to fulfil its duty to accommodate an employee’s disability, an employer may be required in an appropriate case to place a disabled employee into a position for which he or she is qualified but not necessarily the most qualified.”

Should a Disabled Employee Be Reinstated with Full Back Pay?

One the one hand, the OCA stated that while rarely used in the human rights context, the remedy of reinstatement fell within the Tribunal’s remedial jurisdiction.

When refusing to overturn the adjudicator’s decision to order reinstatement, the OCA noted that Ms. Fair’s employment relationship with the School Board was not fractured and the passage of time had not materially affected her capabilities.

On the other hand, the OCA indicated that a comparison of an adjudicator’s jurisdiction under the Ontario Human Rights Code to an arbitrator’s jurisdiction in the labour relations context was not unreasonable or unusual and referred to an earlier Tribunal decision where an adjudicator, when examining the issue of reinstatement, noted:

While reinstatement orders are rarely requested or ordered in human rights cases, they are “normally” ordered in arbitral cases where a violation of a grievor’s rights has been found, unless there are “concerns that the employment relationship is no longer viable” A.U.P.E. v. Lethbridge Community College, [2004]….. The goal of human rights legislation, which is remedial in nature, is to put the applicant in the position that he or she would have been in had the discrimination not taken place. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998)… Where viable, reinstatement is sometimes the only remedy that can give effect to this principle.

What are the Implications of this Decision?

Will this case translate into a shift in how adjudicators exercise their remedial jurisdiction where reinstatement is no longer a rare remedy and becomes as common a remedy as in the arbitration world? If so, I think employee lawyers will start commencing more proceedings at the Tribunal as opposed to the courts all other things being equal. With the prospect of reinstatement and/or large back pay awards there will be more pressure on employers to settle at the Tribunal for larger settlements. Only time however will tell.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Restaurant who refuses to serve customer with a service dog ordered to pay $ 2500 in general damages

By , May 31, 2016 9:59 am

Obligations to Train Employees On Human Rights Issues

We often represent employers and employees who have human rights issues. It is a rather complex area of the law, especially cases involving individuals with disabilities. For more blogs on the rights of disabled employees, click here.

An employer has obligations towards disabled employees under the Ontario Human Rights Code (the “Code”) and the Accessibility for Ontarians with Disabilities Act  (“AODA”) including mandatory training. For more information on an employer’s obligations under AODA, click here.

A recent case illustrates what can happen if an employer doesn’t properly train its employees on human rights issues.

The Facts of the Case

An autistic person, his mother and a service dog were refused service at a restaurant because they wanted the service dog to accompany them. The mother called the police who advised that they could not intervene. The police suggested they call the municipality but they were advised that the municipality could also not intervene and referred them to the Human Rights Legal Support Centre which said they did not have the resources to intervene in the immediate situation, but told them how to file an Application. After calling these places and getting no assistance, they left the restaurant and filed an application under the Code four days later.

The Law

The Human Rights Tribunal of Ontario (the “Tribunal”) found that autism spectrum disorder is a “disability” within the meaning of the Code

The Tribunal concluded the restaurant did not accommodate the son’s disability and in this regard quoted a section of a regulation under AODA, which states: “If a person with a disability is accompanied by a guide dog or other service animal, the provider of goods or services shall ensure that the person is permitted to enter the premises with the animal and to keep the animal with him or her unless the animal is otherwise excluded by law from the premises.”

The responsibility for ensuring that servers are properly trained and aware of the obligations of a service provider rests with the employer and not the employee. Any liability for discrimination done by an employee in the course of the employee’s employment that results in a breach of the Code is that of the employer.

The Decision

The restaurant violated the autistic person’s right to be free from discrimination because of a disability by refusing to permit his service dog to enter the restaurant.

The restaurant was ordered to retain at its cost an expert in human rights to develop a human rights policy.

The restaurant was ordered to pay the son $2,500 as compensation for injury to dignity, feelings, and self-respect. This case can be contrasted to an earlier decision where a person with a service dog was denied access to a mall for about 5 minutes and was awarded $ 1000 in damages because a mall employee did not understand his right to bring the service dog into the mall. For more information on this case, click here.

Lessons to be Learned:

  1. Many employers have a positive obligation to train employees on human rights issues, particularly under AODA. Failure to train employees can result in an employer being ordered to pay for an employee’s unfamiliarity with the law.
  1. Employers who offer services to the public, like restaurants, are particularly susceptible to human rights claims. Many members of the disabled community are aware of their rights and will enforce them. In this case, the mother told the restaurant staff that her son had the right to bring a service dog into the restaurant before she and her son were denied service.
  1. Employers should participate in the application process under the Code. In this case, the restaurant did not send a representative to the hearing. It is possible that because the adjudicator did not hear both sides of the story the damage award was higher than it would have been otherwise.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

The Pitfalls of Dismissing an Employee Without Seeking Legal Advice

By , May 17, 2016 9:31 am

It is always a good idea to call your employment lawyer before an employee’s dismissal even if the employee has signed an iron clad termination clause. Most of my clients do so and sometimes the call helps the client save thousands of dollars.

This past week – like most weeks – I had a number of calls from clients who wanted to terminate an employee.

In one case, the employer wanted to terminate a poor performer without just cause.  For various reasons, I always want to know the backstory to a potential dismissal so I started asking questions. It turns out the employee was disabled and had very recently requested accommodation. Although I have no doubt the disability had nothing to do with the desire to terminate, the employer had not done a good job of documenting several bona fide performance concerns, had not warned the employee that his employment was at risk, and internal discussions about the dismissal did not take place until after the employee had disclosed the disability. I therefore outlined the additional legal liability the client could assume if the employee were terminated at this particular time. Because the employee had a mental disability and I was concerned a termination might exacerbate this condition, I told the client that the non-termination costs associated with the proposed dismissal could be significant.

Lessons to be learned:

  1. Make sure every employee signs an employment contract with a legally enforceable termination clause. For blogs discussing how termination clauses are being successfully challenged by employees, click here.
  2. Always call your employment lawyer before terminating an employee even if the employee has signed a legally enforceable termination clause.
  3. To avoid additional legal liability, it is sometimes necessary to delay an employee termination. Damages for human rights violations, punitive damages, and the intentional infliction of mental stress can far exceed the termination pay an employee is owed under an employment contract. For blogs discussing non-termination pay damages, click here.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Disability Insurance and the Uncooperative Employee

By , April 13, 2016 10:00 am

Do you have an employee who is absent because of a medical issue, but will not provide the necessary paperwork to a third-party disability insurance provider? We often get calls from frustrated employers who are unsure how to proceed when such a situation arises. A 2015 case from the Ontario Superior Court offers employers some direction.

Betts v IBM Canada Ltd., 2015 ONSC 5298

Mr. Betts began working for IBM in 1999. In 2008, he began to suffer from a major recurring depressive and anxiety disorder for which he took medication and received therapy. He had two major depressive episodes, one in 2008/ 2009 and one in 2013/ 2014. In 2008/2009, he went off on short-term disability and completed all the necessary paperwork to do so. In mid-October 2013, Mr. Betts stopped attending work. Despite receiving instructions to complete the necessary forms by November 5, 2013, Mr. Betts failed to do so.

Between December 2013 and June 2014, IBM sent Mr. Betts five letters which outlined his options in the face of his refusal and/or inability to comply with the short-term disability plan requirements. He was advised that he would be considered to have voluntarily resigned if he did not undertake one of the available options. He continued to provide incomplete information.  In the final letter sent on May 15, 2014, IBM advised that he had until June 9, 2014 to submit additional information for his second and final appeal. He once again failed to submit the necessary information. He emailed IBM advising that he would not be returning because “his doctor’s not still applied.” The doctor’s note, as he had been advised, did not comply with the physician requirements of the disability plan.  On June 30, 2015, IBM considered Mr. Bett to have voluntary left his position. Mr. Betts sued for wrongful dismissal, but the Courts agreed with IBM stating “[i]t is difficult to imagine what more the defendant could have done during the plaintiff’s 8 month absence…”

Lessons for Employers

  1. Maintain open and clear communication with the employee. Be sure to advise the employee in writing of his or her obligations and what the consequence will be for failing to comply.
  2. Give the employee multiple warnings and opportunities to adequately comply. Although this can extend the timeframe of an unapproved absence, it helps demonstrate that the employer did everything that it could to assist the employee to comply and a finding of abandonment is more likely.
  3. Keep in mind that as an employer, you still have a duty to accommodate to the point of undue hardship under the Human Rights Code. Just because a third-party insurance provider denies a claim, it does not necessarily mean that there is not a means by which the employee can be accommodate. The case described above did not address any Human Rights Code.

If you have any questions about an employee taking medical leaves of absences and your duties as an employer, please contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to speak to you.

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Disabled Employee Earning $ 22 000 Per Year Awarded $ 110 000 Damages

By , April 5, 2016 9:57 am

In my experience, many employees are now claiming more than one type of legal damages in wrongful dismissal cases. This is particularly the case when the employee is disabled.

A recent Ontario case is a good example.

The Facts

Ms. Strudwick worked for an employer that recruited individuals to participate in focus groups. She was paid $ 12.85 per hour and her duties involved data entry, and instructing recruiting staff.

In 2010, Ms. Strudwick became deaf. According to the trial judge: “…her employer’s attitude towards her and treatment of her became unconscionable. The plaintiff deposed she was constantly belittled, humiliated and isolated.” Among other things, the employer refused to accommodate her disability.

She was fired for just cause after more than 15 years’ service because at a Toastmaster’s meeting that was held at the workplace “she did not select a topic from those she had prepared or speak on any topic the requisite one or two minutes.”

Decision

The trial judge concluded she was not terminated for just cause, the employer refused to accommodate her disability, the termination caused Ms. Strudwick to suffer a medical disorder, and the employer treated Ms. Strudwick in a harsh and demeaning manner.

Damage Award

Wrongful Dismissal Damages

At the time she was terminated, Ms. Strudwick was 59 years old, had worked for almost 16 years, and held an administrative position. The judge ordered the employer to pay her 24 months’ pay in lieu of notice and about $ 6000 in lieu of lost benefits during that time.

Human Rights Damages

The judge awarded her $ 20 000 in general damages under the Ontario Human Rights Code.

Damages for Intentional Infliction of Mental Stress

The judge concluded that the employer’s conduct caused Ms. Strudwick to suffer an adjustment disorder with mixed anxiety and depressed mood which required psychological treatment and ordered the employer to pay almost $ 19 000 for the cost of this treatment.

Punitive damages

The judge ordered $ 15 000 in punitive damages because he did not think the other damage awards adequately accomplished the objectives of “retribution, deterrence and denunciation.”

Lessons to Be Learned

  1. Disabled employees have additional legal rights. Accordingly, employers should make themselves aware of these rights. For more information on the rights of disabled employees, click here.
  1. Any request for accommodation should be taken very seriously and failure to do so can result in significant legal damages. For information on the duty to accommodate, click here.
  2. Trying to force an employee to quit – especially a disabled employee – can result in additional legal damages.
  1. Judges have the discretion to order an employer to pay a sympathetic employee many different types of damages. For more information on different types of wrongful dismissal damages, click here.
  1. Always consult with an employment lawyer before terminating a disabled employee.

For more than 25 years, Doug MacLeod of the MacLeod Law Firm has been advising and representing Ontario employers. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

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