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By MacLeod Law Firm, April 15, 2013 8:01 pm

Recent Court Ruling: Terminating a disabled employee can lead to human rights damages that are MUCH greater than those for wrongful dismissal

A March 2013 decision by an adjudicator appointed under the Ontario Human Rights Code should make employers sit up and take notice of their duty to accommodate disabled employees. The employee was reinstated and the employer was ordered to pay her, among other things, 10 YEARS back pay and $ 30 000 in discrimination damages.

The Facts

The employee was terminated after almost 16 years employment. For the last 10 years of her employment, she was employed as a school board’s Supervisor, Regulated Substances, Asbestos. At the time of her termination, she was disabled. Her disability was a reaction to the highly stressful nature of her job, and her fear that, in making a mistake about asbestos removal, she could be held personally liable for a breach of the Occupational Health & Safety Act.

The Decision

Prior to being terminated, the employee was on long-term disability. When she was no longer disabled she attempted to return to work. The adjudicator concluded the employer failed to take steps to investigate possible forms of accommodation, and failed to offer the employee available, alternative work.

The Remedies

1. Reinstatement. The courts do not generally reinstate wrongfully dismissed non-union employees; however, the adjudicator reinstated the employee.

2. Damages for lost wages. When assessing damages, the courts generally calculate lost wages by considering how much remuneration an employee would have earned during a reasonable notice period (less any income earned during this period) which would likely have been in the 15 to 18 month range in this case. The adjudicator however ordered the employer to pay the employee 10 YEARS lost wages which was the length of time between the termination and the date of reinstatement.

3. General damages. It is only in exceptional cases that courts order general damages in wrongful dismissal cases. In this case, the adjudicator ordered the employer to pay the employee $ 30 000 in general damages for the injury to her dignity, feelings and self-respect.

Lessons to be learned:

1. When presented with an accommodation request by a disabled employee, the employer should take steps to investigate possible forms of accommodation.
2. If a disabled employee cannot perform her pre-disability job, the employer should give consideration to her ability to perform alternate employment opportunities.

If you have any questions about accommodating disabled employees, you can reach us at 1-800-640-1728 or at inquiry@macleodlawfirm.ca.

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By MacLeod Law Firm, December 12, 2012 9:27 am

HEADS UP!  AODA compliance reporting is due December 31, 2012

Are you aware of your obligations under the Accessibility for Ontarians with Disabilities Act (AODA)?  Many employers are not, and the first phase of these obligations has already begun.

Did you know that as of January 1, 2012, AODA required every provider of goods and services to comply with the Customer Service Standard?

Did you know that as of December 31, 2012, AODA requires any provider of goods or services with 20 or more employees to file a Customer Service Accessibility Compliance Report?

If you answered “no” to any of these questions, let’s get you on the right track now!

Complying with the Customer Service Standard is as easy as 1, 2 (and sometimes 3 & 4)

For every provider of goods and services

Step 1. Prepare an accessible customer service policy. Click here for a template.

Step 2. Train Employees on the Customer Service Standard.  Complete a 45 minute online training course by clicking training course.

For every provider of goods and services with 20 or more employees

Step 3. Keep a written copy of your accessibility policy and notify customers that a copy is available upon request. This notice should be posted in a conspicuous space or on the organization’s website. Keep a record of employee training.

Step 4. File your Customer Service Accessibility Report by December 31, 2012. Click for directions on compliance reporting.

This is just the first phase of the AODA compliance requirements.  Stayed tuned for more information and suggestions on how to meet your obligations in 2013.

If you have any questions about employers’ obligations under AODA, please call us at 1–888-640-1728 or email us at inquiry@macleodlawfirm.ca. You can follow us on twitter or subscribe to our employment law blog 

The material and information provided in this blog is for general information only and should not, in any respect, be relied on as legal advice or opinion. The MacLeod Law Firm makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction.

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By MacLeod Law Firm, May 18, 2012 7:35 pm

Human Rights Laws in Ontario

The human rights laws that govern Ontario employers are found within the Human Rights Code. Ontario employers must comply with the Human Rights Code (Code) which prohibits discrimination in employment on 14 grounds including: race, colour, sex, sexual orientation, age, marital status, family status, or disability. (a Prohibited Ground)

In our experience, most human rights issues arise during the hiring process or relate to disabled employees or female employees. In this blog, we will address these three issues.

1. Discriminating in the hiring process

The Code prohibits discrimination in employment on a Prohibited Ground, and states that an infringement occurs where, among other things, a job application directly or indirectly classifies on a Prohibited Ground.

The Ontario Human Rights Commission (the Commission) has published at least four policies that are relevant to hiring; namely

-       Policy on employment-related medical information

-       Policy on drug and alcohol testing

-       Policy on requiring a driver’s license as a condition of employment

-       Policy on height and weight requirements

2. Discriminating against disabled employees

The Code prohibits discrimination in employment because of disability unless the person is incapable of performing or fulfilling the essential job duties. A person cannot be found incapable unless accommodating the person would cause the employer undue hardship

The Commission has published a 40-page document entitled “Policy and Guidelines on disability and the duty to accommodate”.

3. Discriminating against female employees

The Code prohibits discrimination in employment because of sex which includes the right to equal treatment because a woman is (or may become) pregnant, and the right not to be sexually harassed.

The Commission has published a 32-page document entitled “Policy on discrimination because of pregnancy and breastfeeding”, and a 37-page Guideline on developing human rights policies and procedures

Lessons to be Learned

1. Generally, when making employment decisions, it should not matter to an employer whether an employee is: male or female; heterosexual or homosexual; white or of colour; married or single; Canadian or another nationality; or, disabled or able-bodied. Taking one of these grounds into account when making an employment decision is generally a violation of the Code.

2. Generally, an employer should not ask whether an employee is disabled or speculate as to whether accommodation measures are needed. The onus is generally on the employee to disclose a disability and to identify any accommodation measures that are required.

3. Although not required by law, we recommend that most employers introduce a human rights policy which defines sexual harassment and includes a internal complaint process

4. The Policies and Guidelines published by the Commission do not have the force of law, however, the Human Rights Tribunal of Ontario can and does consider Commission policies at human rights hearings. We believe that certain Commission policies and guidelines interpret the Code too broadly.

If you have any questions about human rights in the workplace, please call us at 1-888-640-1728 or send an email to inquiry@macleodlawfirm.ca.