Employment law governs the rights and obligations between individuals and their employers. They arise from the common law in most provinces and the civil law in Québec. Employment lawyers negotiate and draft individual employment contracts; advise as to the obligations that arise from the employer-employee relationship; draft non-solicitation, non-competition, golden parachute and arbitration clauses; and engage in litigation arising from the employment relationship.
In Hamilton-Wentworth v. Fair, the Ontario Court of Appeal upheld the reinstatement of an employee unjustly terminated employee some 12 years earlier and a $450,000 award for back wages.
The case involved the Hamilton-Wentworth District School Board’s failure to accommodate the disabilities of Sharon Fair, an employee with 15 years’ service and at the time of her dismissal a supervisor with the board’s hazardous material team. The stressful nature of Fair’s job led her to develop generalized anxiety disorder, which in turn led to depression and post-traumatic stress disorder.
Fair went on disability leave. But when her long-term disability insurance ran out in April 2004, the Board fired her.
In 2012, the Human Rights Tribunal of Ontario ruled that the Board failed to accommodate her disability. A year later, the HRTO ordered the Board to give Ms. Fair her job back along with nine years of back pay and benefits. The C$450,000 award remains the largest award for lost wages in a Canadian human rights case.
Both the Divisional Court and then the Court of Appeal upheld that ruling.
Despite the size of the monetary award, however, it is the reinstatement order that has drawn the most attention from employment lawyers and their clients. They argue that reinstatement is an unrealistic remedy in an employment dispute, leaving the employer with the uncomfortable task of re-integrating the employee back into the workplace. They argue that in most cases, the employment relationship is too damaged by the discharge and the litigation for reinstatement to be a realistic option. They also maintain that the resultant animosity and lack of trust raises the possibility of creating a poisoned working environment.
To be sure, the Tribunal has historically been of the view that its reinstatement powers should be exercised in limited circumstances.
Ms. Fair’s case, however, had some unique aspects. She testified that she had no hard feelings against her employer, the individuals who made the decision to terminate her were no longer employed with the Board, and the employer was large and sophisticated. Indeed, the Court of Appeal was careful to note that Fair’s relationship with her employer “was not fractured and the passage of time had not materially affected her capabilities.” The upshot, management lawyers argue, is that it’s unlikely that reinstatement will become the new normal.
Still, it’s hard to ignore the fact that the Tribunal relied on precedents from arbitrators stating that reinstatement should be the normal remedy — and in point of fact, labour arbitrators do routinely order reinstatement. On the other hand, in recent years even arbitrators have shown an increasing awareness of the inherent difficulties in reinstating employees and compensation in lieu of reinstatement has gained some traction as an exceptional alternative.
What’s clear, however, is this: after the Court of Appeal’s decision in Hamilton-Wentworth District School Board v. Fair, the HRTO’s power to reinstate has become a real risk for employers appearing in that forum.
INCARCERATION LOOMS FOR EXECUTIVES INVOLVED IN OCCUPATIONAL HEALTH AND SAFETY VIOLATIONS
The harshest sentence ever imposed in Canada for an individual’s role in a workplace accident should sound alarm bells for employers throughout the country.
In January 2016, Justice Ian MacDonnell of the Ontario Superior Court of Justice imposed a three-and-a-half year sentence on project manager Vadim Kazenelson for his role in a quadruple fatality on a Metron construction site on Christmas Eve 2009. Mr. Kazenelson was convicted the previous June on four counts of criminal negligence causing death and one count of criminal negligence causing harm.
Justice MacDonnell found that Mr. Kazenelson allowed five of his workers to get on a swing stage although he knew that proper fall precautions were not in place. The stage collapsed from the 13th floor, causing the death of four workers and severely injuring another.
“The seriousness of the offences committed by Mr. Kazenelson and their consequences cannot be doubted,” said MacDonnell. “A significant term of imprisonment is necessary to reflect the terrible consequences of the offences.”
It’s only in the last two years that courts have been incarcerating executives and supervisors for occupational health and safety offences. The lengthiest sentence imposed had been 45 days, but it was imposed under the Ontario’s Occupational Health and Safety Act, which provides for a maximum sentence of one year’s imprisonment.
Although the penitentiary-length sentence imposed by MacDonnell followed Criminal Code convictions, the sheer severity of the sentence could up the ante for non-criminal charges. All the more so because Metron imposes a high standard of behavior on supervisors and managers.