The Ontario Human Rights Tribunal (the “Tribunal”) has recently shown that an employee can be reinstated, even if a decade has passed since their dismissal, when the dismissal was discriminatory.

After working for the Hamilton-Wentworth District School Board (the “School Board”) for 13 years, Sharon Fair developed a generalized anxiety disorder, and was off work on a medical leave for just over three years. In July 2004, despite being cleared to return to work, Ms. Fair was dismissed by the School Board. She subsequently filed a human rights claim, alleging discrimination on the basis of disability contrary to the Human Rights Code.  In 2012, the Tribunal upheld the complaint, and found that the School Board had failed to actively, promptly, and diligently canvass possible alternative solutions to Ms. Fair’s need for accommodation.

In the remedial decision that was recently released, in addition to the monetary compensation for her losses, the Tribunal ordered Ms. Fair be reinstated. The Tribunal found that the decade-long absence from the workplace was not reason enough to refuse reinstatement, especially when Ms. Fair had filed her complaint immediately after being dismissed.

This decision reminds employers that reinstatement is not off the table, even if an employee has been away from the workplace for years. Imagine the following challenges an employer might face when dealing with life after reinstatement:

• Where to return a reinstated employee? Employers facing the reinstatement of an employee will need to make efforts to ease the employee’s transition back to their original position. Reinstatement requires the employer to return the employee to their original position (as opposed to a new role), failure of which may constitute reprisal.
• How to transition other employee(s)? Returning a reinstated employee to their position may require the transfer or dismissal of the employee who occupied that position. Employers will either need to transfer this employee to a comparable position (or risk a constructive dismissal claim) or dismiss the employee with a fair and reasonable severance package.
• Providing training to the employee: Depending on the length of time the employee was away from work, the employer may be required to update the skills and knowledge of the employee for the position they originally held. This training may include updating an employee on their rights and obligations under employment and occupational health and safety regulations, as well as workplace policies and performance metrics.
• Ensuring the safety of employee(s): A reinstated employee may feel intimidated when returning to the workplace, especially if it has changed substantially since their departure or if employees are displaced as a result. Employers should be mindful of quelling any employee resentment that may lead to bullying or harassment.  Conversely, an employee reinstated following a successful court case can come back emboldened, and possibly be difficult to manage. Employers should not be afraid to treat a reinstated employee like any other employee, including imposing discipline when/if warranted.

As always, prevention can be the best solution. In order to avoid such costly remedies, including potential reinstatement, employers should keep the following in mind when an employee seeks accommodation of a disability:

• address accommodation requests in a timely manner, and seek clarification when the request for accommodation does not use specific formal language;
• obtain expert opinion or advice where needed;
• limit requests for medical information to those reasonably related to the nature of the limitation or restriction so as to be able to respond to the accommodation request;
• consider bearing the cost of any required medical information or documentation. For example, doctors’ notes and letters setting out accommodation needs, should be paid for by the employer;
• investigate alternative approaches and possible accommodation solutions; and
• keep a record of the accommodation request and action(s) taken.

Employers should also keep the lines of communication open throughout the accommodation process, and welcome the employee’s feedback, bearing in mind that if they do not adequately address the disability now, they may have new challenges to face in the future.

Parisa Nikfarjam