Posts tagged: workplace

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]

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Making the Workplace an Accessible Place: One Obligation At a Time

By , February 24, 2015 4:12 am

The Accessibility for Ontarians with Disability Act, 2005, (the “AODA”), is a statute aimed at developing, implementing and enforcing standards that promote accessibility for people with disabilities in Ontario. This law is being phased-in over 20 years.

The AODA has the potential to improve many Canadian’s lives but it faces one major problem: lack of compliance. According to Canadian HR Reporter, about 70% of employers were not complying with AODA as of November 2013. The reality is: many small employers are simply not aware of AODA.

That’s where we come in. This blog provides a basic overview of some of the obligations that are imposed on employers under AODA. Some deadlines have passed while others are fast approaching.

The Customer Service Standard

AODA has an Accessible Customer Service Standard. A summary of this standard is found here.

Did you know that the obligations set out in this standard should have been completed in 2012?

For Ontario employers, a step-by-step guide to complying with this standard is found here.

Following this, on or before December 31, 2014, obligated organizations with 20 or more employees should have filed a second report informing the AODA that they are still complying and achieving accessibility under the Customer Service Standard. Have you?

Obligations as of January 2014

That’s not all. As of January 1, 2014, new obligations were imposed on employers with 50 or more employees. You can find that information here.

New Obligations as of January 2015

There’s more. As of January 1, 2015, the following obligations took effect:

1.All employees and others providing services on behalf of an organization with 50 or more employees must receive training on the Human Rights Code as it pertains to persons with disabilities and the Integrated Standards. For example, you can receive training on how to best accommodate workers who suffer from a mental illness such as anxiety or depression.

2. Organizations with 50 or more employees must ensure that their feedback processes can be administered in accessible formats and with communication supports, upon request.

3. Organizations with less than 50 employees must ensure that they have developed and implemented accessibility policies describing how the organization will achieve accessibility and compliance with the Integrated Standards.

4. Organizations with less than 50 employees must have regard to accessibility issues when designing, procuring or acquiring self-service kiosk.

The Employment Standard

Perhaps the most onerous obligations for employers are set out in the Employment Standard. A summary of these standards is found here.

The Employment Standard takes effect for private sector organizations with 50 or more employees on January 1, 2016. Stay tuned for more information about these new obligations. Please don’t wait until December of this year to start complying!!

For private sector organizations with less than 50 employees the Employment Standard takes effect on January 1, 2017.

And I repeat: don’t wait until December of this year to start complying!

If you have any questions about your organization’s AODA obligations, please contact Doug MacLeod at 416 317-9894 or at [email protected] at your convenience.


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