The Cost of Discriminating Against a Disabled Employee
An employer who discriminates against and terminates a disabled employee can be ordered to pay two kinds of damages under the Ontario Human Rights Code (“Code”); namely, (i) damages for lost income; and, (ii) general damages.
When assessing general damages the adjudicator will consider the employee’s humiliation, hurt feelings, the loss of self-respect, dignity and confidence, the experience of victimization, vulnerability, and the seriousness of the offensive treatment.
This article discusses the implications of recent general damage awards.
General Damage Awards: The Range
In a 2012 decision, an adjudicator reviewed recent decisions under the Code and concluded that general damage awards were in the $10,000 to $45,000 range for disability-related discrimination in the context of an employee termination. In that case, the adjudicator awarded an employee who had been laid off $15,000 for general damages. The employer did not participate in this hearing.
In another 2012 decision, an adjudicator awarded an employee who worked as a product scanner for a wholesale distributor of footwear, $15,000 in general damages who was laid off following a sick leave. No other employees were laid off including four other product scanners.
In a 2014 decision, an adjudicator awarded a Tim Horton’s cashier $15,000. She was terminated after returning to work from a sick leave on a modified basis. The employer did not participate in the hearing.
General Damage Awards: The Ontario Human Rights Tribunal vs. the Courts
A terminated employee who believes he was terminated because of a disability can commence a wrongful dismissal in the courts and include a claim for general damages, or commence an application at the Ontario Human Tights Tribunal.
We are only aware of one case where general damages have been awarded by a court; that is, Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799 (CanLII)
The Wilson case was decided using a summary trial under the Simplified Procedure. The trial judge decided the case based solely on the trial record because neither party called any oral evidence.
The plaintiff, a 54 year old business analyst, was terminated after 16 months service while she was on sick leave. The employer claimed the termination was the result of a sale of part of the business. The plaintiff employee deposed she was “shocked, dismayed and angered” by the defendant employer’s pre-termination letter and she also referred vaguely to “loss of dignity and loss of feelings of self-worth” in relation to the same letter.
The trial judge awarded Ms. Wilson three months pay in lieu of notice, and $20,000 in general damages.
Until more cases are decided by the courts, it is impossible to predict whether the Tribunal or the courts will award more generous general damage awards. Theoretically, it should not matter which forum an employee chooses, however we predict one forum will become more employee friendly over time.
Lessons to be Learned:
- General damages awards are currently in the $10,000 to $45,000 range at the Tribunal for disability claims involving a terminated employee. Accordingly, employers can usually justify allocating up to $15,000 (and more in the right cases) of settlement monies to general damages. There is no EI recapture or taxes payable in connection with these damages. In our experience, the more monies that are allocated to general damages the more likely a settlement.
- Employers should file a Response to all Applications filed under the Code and participate in all hearings that are scheduled at the Tribunal. As noted above, a minimum wage cashier at Tim Horton’s has been awarded significant general damages.
- The Tribunal will carefully review all circumstances surrounding a lay off. It will not accept an employer’s claim that a lay off was for economic reasons at face value. Accordingly, employers should be able to justify why a disabled employee was selected for lay off from an objective business perspective.
For other human rights issues to consider in managing the workplace, see here.
If you have any questions about the Ontario Human Rights Code or managing a disabled employee and would like to speak with an employment lawyer, you can reach us at 1(800) 640-1728 or 1(416)317-9894 or at [email protected]
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