Boomerang Employees: The Curious Remedy of Reinstatement

Employment lawyers are occasionally asked if it is possible for a dismissed employee to get his or her job back.  This question most frequently arises in situations where an employee’s employment was terminated for cause based on improper or false information.  Generally speaking the answer is “it is unlikely”.   It is unlikely because it is exceedingly rare that an employer will agree to return the dismissed employee to their former position (or a comparable one).   In most cases, the main issue is the employee’s entitlement to damages.

There are certain statutory powers that permit authorized adjudicators to order reinstatement.  For example, section 242(4)(b) of the Canada Labour Code permits an adjudicator to order reinstatement where an employee has been “unjustly dismissed”.  Likewise, section 45.2 of the Ontario Human Rights Code permits the Tribunal to make “An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with the Act”.  This has been interpreted to mean that the Tribunal can order reinstatement of employment where there has been an infringement of the Human Rights Code.

While these statutory powers exist, they are infrequently used.  That is why the recent decision of the Human Rights Tribunal of Ontario in Fair v. Hamilton-Wentworth District School Board is such a noteworthy decision.

Ms. Fair was a non-unionized employee of the School Board.  In the fall of 2001 she developed a generalized anxiety disorder which arose from the highly stressful nature of her job.  She applied for and received long-term disability benefits until April 3, 2004 when it was determined that she was fit to return to work.   Between April 3, 2004 and June 2004 the School Board failed to take steps to investigate possible accommodations for Ms. Fair, nor did it offer her alternative work.  On July 8, 2004 the School Board terminated Ms. Fair’s employment.

Ms. Fair filed a human rights complaint relating to the termination of her employment in November of 2004.  For a variety of reasons, it took until February of 2012 for the matter to be heard by an adjudicator.

At the end of the hearing, the adjudicator found that there was a violation of Ms. Fair’s human rights.  The parties then made submissions on the appropriate remedy.  On March 14, 2013, the adjudicator issued the Decision on Remedy and ordered, amongst other things:

  • That Ms. Fair be reinstated to a position comparable to the position she held prior to the termination of her employment;
  • The School Board to pay back wages to June 26, 2003 (which amounted to $419,283.89 less repayment of employment insurance benefits and other adjustments);
  • Reimbursement of all out of pocket medical and dental expenses incurred by Ms. Fair from August 2004;
  • Damages in lieu of increased life insurance premiums;
  • $30,000 for injury to dignity and self-respect;
  • Prejudgment interest on all damages from the date the complaint was made.

The facts of the Fair case were highly unusual and the decision should not be taken as a signal that the Tribunal is now seeking to use the remedy of reinstatement on a more frequent basis.  Nevertheless, the decision does stand as a cautionary tale to employers both because reinstatement was ordered and because of the amount of back wages ordered.

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