EMPLOYER’S FAILURE TO ACCOMMODATE EMPLOYEE’S DISABILITY

Employer’s Failure to Accomodate Employee’s Disability Results in 9 Years of Back Pay and Reinstatement

Fair v. Hamilton-Wentworth District School Board

The Hamilton-Wentworth District School Board has been ordered to re-hire an employee and pay 9 years of back wages after the Ontario Human Rights Tribunal found that the employer did not accommodate her disability.  The employee held the position of supervisor of the Board’s hazardous material team which included the removal of asbestos.  She developed an anxiety disorder as a result of the stress related to her responsibilities and believed that as supervisor she could be held personally liable for mistakes regarding asbestos removal under the Occupational Health and Safety Act, R.S.O. 1990, c.012, as amended.  The employee collected disability for two years from 2002 to 2004 and thereafter was medically capable of resuming another position with the Company.  The School Board failed to accommodate her in another position and failed to actively consult with her to determine her medical restrictions.  The Employer terminated the employee on July 8, 2004.  The Tribunal ordered that the Employer reinstate the employee to a suitable position notwithstanding that she had been terminated almost 9 years earlier and pay her 9 years in back pay.  In addition, the Tribunal made an award for compensation for injury to her dignity, feelings and self-respect in the amount of $30,000.00.

Employers must take seriously its duty to accommodate an employee based on medical restrictions and limitations.  As well, as in this case, employers must also consider the possibility of reinstatement despite a significant passage of time.

[NOTE: The decision is being judicially reviewed the week of February 24, 2014].  

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