Canadian Employment Law Today

CELT May 29 2013:celt 467.qxd 13-05-15 4:34 PM Page 6 May 29, 2013 Employee asked for reinstatement before years of delays ...continued from page 1 they were unrelated to asbestos removal, to which Fair's anxiety was tied, said the tribunal. Despite the years that had passed since her original complaint, Fair still requested reinstatement as a remedy. The school board contested this as well, arguing it would be unfair to let Fair "lie in the weeds" for more than eight years after her termination and then seek to come back, preventing the board from mitigating its losses. The school board also noted she waited until late 2004 to initially file her complaint, even though the discrimination she claimed to have suffered took place when the two positions were available in the summer of 2003. Reinstatement reasonable if employment relationship still viable The tribunal noted that the Supreme Court of Canada had confirmed – in the 2004 decision of Alberta Union of Provincial Employees v. Lethbridge Community College – that reinstatement was the preferred option when an employee's rights have been violated, unless "the employment relationship is no longer viable." In Fair's case, the tribunal saw no evidence the employment relationship couldn't work, as Fair testified she held no ill will towards the school board and felt she could return to work there. Also, the individuals who were responsible for Fair's termination in 2004 were no longer with the school board. The tribunal found Fair waited until late 2004 to file her complaint because at the time of the available positions in 2003, she was still actively seeking a new position with the school board. Her complaint came only four months after she was actually terminated. "The fact that (Fair) continued to participate in good faith with the employer in seeking an accommodated position does not give rise to a delay that would now preclude her from obtaining a remedy for the (board's) infringement of her rights under the code," said the tribunal. The tribunal also found the lengthy delay in the proceedings was not Fair's fault, but rather was the commission's. When it became evident the commission wasn't going to get to her complaint before the human rights revamp, she filed with the tribunal, which then took another three years to deal with the case because of "the complexity of Risk for hostile public opinion ...continued from page 3 another option is to expand use of internships involving students attending colleges of applied arts and technologies or universities. Student placements involving educational institutions fall within the law and offer reputational and HR benefits. Organizations grappling with the issue of unpaid interns should also consider the manner in which the media is currently covering workplace issues. The recent news coverage surrounding RBC's controversial use of Canada's temporary foreign worker program clearly demonstrates the extent to which an employer's reputation — and business — can be dam- 6 aged by hostile public opinion. Allegations of interns being treated like slave labour make sensational headlines and can be deadly to a company's reputation. CELT ABOUT THE AUTHOR David A. Whitten David A. Whitten is an employment law expert and the founding partner of Whitten & Lublin in Toronto. He can be reached at david@whittenlublin.com. the issues." In addition, Fair was able to show she had accepted part-time employment after her termination and had continued to look for full-time employment afterwards, meeting her obligation to try to mitigate her losses. The school board was ordered to reinstate Fair to a position equivalent to the one she left in 2003, with the only restriction that it shouldn't involve exposure to health and safety liability similar to that caused by working with asbestos, and an allowance of a "reasonable period (up to six months)" of training. The school board was also ordered to compensate Fair with wages, benefits and pension contributions she would have earned from the date the staff supervisory position was posted in June 2003 until the date of her reinstatement almost ten years later – estimated at more than $419,000 in lost wages alone. Finally, another $30,000 was tacked on for injury to Fair's dignity, feelings and self-respect from the discrimination. CELT For more information see: ■Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440 (Ont. Human Rights Trib.). ■ A.U.P.E. v. Lethbridge Community Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. Recent topics include unpaid internships, confirming intention of resignation, just cause for jobs with high level of trust, off-duty misconduct and length of time before reinstatement. You can view the blog on www.employmentlawtoday.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013

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