Thursday, 22 May 2014

Employment Law -- case comment


One of the most interesting decisions I have come across in the past year has been the decision of Fair v. Hamilton-Wentworth District School Board 2013 H.R.T.O. 440. Ontario Human Rights Tribunal found that the employer had breached its obligations under the Ontario Human Rights code by terminating employee’s employment in 2003.  She was not accommodated and instead was terminated.  The Tribunal ordered that the non-union employee be reinstated to employment despite the fact that she had been away from the workplace for approximately a decade.  

It is true that the Ontario legislation specifically provides for reinstatement, but it is extraordinarily unusual for employees to be reinstated in a non-union workplace.  In fact, the writer has never seen the exercise of this remedy outside of a unionized workplace.  Why?  I suspect that it would be very difficult for both the employee and employer to be reintegrated without the assistance a union.   In what position would she be placed?  Her old position?  There are no bumping rights in employee law as opposed to the world of labour law.  If the employer were to remove the prior employee and that employee had been there for ten years then they would on the hook for a severance package, a severance package for a 10 year employee.

The case is very interesting but it seems unlikely to catch on as a remedy generally within this area of the law.

 Darryl Aarbo, Courtney Aarbo Fuldauer LLP

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