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 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.
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.
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:
- When presented with an accommodation request by a disabled employee, the employer should take steps to investigate possible forms of accommodation.
- 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 [email protected]
In Waksdale, the Ontario Court of Appeal concluded that a judge should not enforce a termination provision that is in whole or in part illegal.
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