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Employment & Labour

Restraint needed in large back pay awards

A record-setting human rights decision that ordered a local school board to give an employee her job back, along with nine years of back pay and benefits, may spark an increase in back pay claims in future cases, says Toronto labour and employment lawyer Arthur Zeilikman.

“Legally, nothing has changed – adjudicators are entitled to order back pay; however, depending on the final decision-making body deciding this case, the decision could embolden counsel to claim back pay in future cases,” says Zeilikman.

In a March 14 decision by the Human Rights Tribunal of Ontario (HRTO), the Hamilton-Wentworth District School Board (HWDSB) was ordered to give Sharon Fair her job back with an award worth over $450,000, the Toronto Star reports.

The decision came a year after the tribunal determined that the school board failed to accommodate Fair’s disability, the Star reports, noting it was the biggest award for lost wages in a Canadian human rights case.

The board is appealing the decision and until that is heard Fair will not receive the money or return to work, the article states.

Fair was a supervisor of the board’s hazardous material team, which included asbestos removal, when she was fired in July 2004, the Star reports. According to evidence at the 2012 tribunal hearing, Fair developed a generalized anxiety disorder and was subsequently diagnosed with post-traumatic stress disorder, the report says.

At the hearing in February 2012, adjudicator Kaye Joachim concluded that the school board discriminated against Fair on the basis of her disability, the article continues.

At the hearing, Joachim ordered the board to find a suitable job for Fair, and awarded her for nine years of lost wages at $419,284, plus interest, the Star reports. In addition, the board was ordered to pay $30,000 for Fair’s loss of dignity caused by her poor treatment by the board, the report says.

“Adjudicators are granted significant discretion under the Human Rights Code in the event discrimination is established,” says Zeilikman.

“If an employee’s loss of employment is linked to discriminatory conduct, in addition to damages for loss of dignity, adjudicators are allowed to make the wronged party ‘whole’ by ordering the employer to give the employee their job back. Thus, if an adjudicator determines that reinstatement is an appropriate remedy, the adjudicator can order that the applicant be compensated to cover the date on which he or she lost her job through the date on which reinstatement was ordered.”

Zeilikman says he agrees with the HRTO’s decision to award Fair $30,000 for loss of dignity, but notes adjudicators must be diligent when dealing with back pay.

“Employees should be protected from discrimination on the grounds of disability and compensation should adequately reflect that,” he says.

“However, the issue of back pay has to be qualified. If a responding party chooses to litigate a matter in a vexatious and abusive way so as to cause delay in the proceeding, then back pay is an appropriate remedy in addition to the normal human rights damages for loss of dignity.

“However, adjudicators should exercise restraint in awarding extravagant compensation in the form of back pay. This is because parties are often not in control of how a case progresses, and the administrative mechanics of Ontario’s tribunals are hardly conducive to the quick resolution of disputes.”

The case stands out, Zeilikman says, because of the quantum - not manner of calculation.

“Back pay is not unheard of and is used in arbitrations in the context of collective agreements and other employment forums,” he says.

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