Reinstatement of Employment After 14 Year Absence - Considerations
Last year, the Ontario Court of Appeal weighed in on the question of "how long is too long" with respect to reinstatement of employment following a 14 year absence. Believe it or not, the Court of Appeal upheld a Human Rights Tribunal decision requiring reinstatement of employment after more than a decade. The court ruled that the passage of years is not by itself determinative of whether reinstatement is the appropriate remedy.
The employee's first seven years on the job seem to have been uneventful. At that point she had the position of Supervisor, Regulated Substances, Asbestos. However, she developed a generalized anxiety disorder, as a result of which she was hospitalized for almost a month.
She was subsequently diagnosed with depression and post-traumatic stress disorder. This disability developed in response to the highly stressful nature of her job and her fear that, in making a mistake about asbestos removal, she could cause personal injury to others and be held personally liable for a breach of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1.
The employee went on long term disability for approximately two years and then indicated that she wanted to return to work. She communicated what positions she was capable of filling. However, when these positions became available, they were not offered to her.
The employee applied to the Human Rights Tribunal which ruled that she had been discriminated against due to her medical disability and ordered that her employer was obligated to accommodate that disability. The Tribunal further ordered that the employer reinstate her employment.
The employer appealed, first to Divisional Court and then to the Court of Appeal. In upholding the Tribunals Decision the court evaluated whether a reinstatement of employment was appropriate after the lengthy 14 year absence from work. It stated:
The passage of years is not, by itself, determinative of whether reinstatement is an appropriate remedy. Rather, the decision as to whether to order reinstatement is context-dependent. In the present case, the Tribunal found none of the barriers to reinstatement that foreclosed reinstatement in the Ford Motor case. Specifically, Ms. Fair’s employment relationship with the School Board was not fractured and the passage of time had not materially affected her capabilities.
The Lesson: Length of absence alone is insufficient to prevent reinstatement of an employee. Rather, should an employer wish to prevent reinstatement, it must demonstrate that the employment relationship is broken or that the employee lacks the requisite capabilities for a position. It will be extremely difficult for a large multi-employee public service employer to assert the latter as the many potential positions place an obligation on the employer to find a suitable placement for the employee.
Hamilton-Wentworth District School Board v Fair, 2016 ONCA 421 (ONCA) https://www.canlii.org/en/on/onca/doc/2016/2016onca421/2016onca421.pdf
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