July 16, 2013

Human rights have become one of the hottest topics in employment law this year.

This year alone, we have witnessed broad acknowledgement of discrimination and harassment on the prohibited grounds of age, family status and disability.

The Alberta Human Rights Tribunal ordered reinstatement and five years of lost wages to Joan Cowling, a 67 year employee who filed a complaint on age discrimination after working 8 years on successive fixed terms contracts for the province of Alberta.  Despite fully meeting expectations, the Province of Alberta declined to hire her.    $15,000 was awarded for Ms. Cowling’s damages to injury, dignity, feelings and self-respect.

In the case of family status, Fiona Johnstone, who worked shift work at Toronto Pearson Airport, requested to work set hours in order to accommodate child care obligations, after giving birth to her first child.  She was denied the ability to work set hours, but was offered stable, part-time work, and an adjusted schedule.  Nonetheless, the Federal Human Rights Tribunal did not agree that she was being accommodated, and ordered that she must be.

Most recently, the Hamilton-Wentworth District School Board ordered reinstatement to the position most recently held and awarded 9 years of lost wages and benefits, totalling over $450,000.00.  Additionally, the Tribunal awarded $30,000.00 for damages for injury, dignity and self-respect.

In that case, Ms. Fair was the supervisor of the Board’s hazardous material team, which included the removal of asbestos when she was terminated from her employment.  In the fall of 2001, Ms. Fair developed a generalized anxiety disorder, and was subsequently diagnosed with post-traumatic stress disorder, related to the stressful nature of the position.  She feared that she may be terminated from her employment if she made any mistakes with asbestos removal.

She received long term disability benefits for two years.  She was found ready to return to work in a job not involving responsibility for health and safety issues.  There were numerous suitable jobs available.  However, the Board refused to consider her for other positions, taking the position that if she could not accept the health and safety risks of her previous position, she could not accept the risks of any other supervisory job.

The Board was found to have discriminated against her on the basis of disability, and by failing to accommodate the medical condition.

Had any of these decisions been made in the context of a civil action for wrongful dismissal, the damages could have been substantially higher, if the employee had sought punitive damages, and damages of a moral nature.

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