FYI.

 Fired Hamilton school board staffer awarded nine years of backpay

In a record-setting human rights case, the Hamilton-Wentworth District School Board has been ordered to give an employee her job back, along with nine years of backpay and benefits in an award worth more than $450,000.

The March 14 decision by the Human Rights Tribunal of Ontario comes a year after the tribunal determined the school board failed to accommodate Sharon Fair’s disability. It is 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 be able to return to work.

Fair was a supervisor of the board’s hazardous material team, whose duties included asbestos removal, when she was fired in July 2004. She had been hired as a casual employee in October 1988, but within a few years, was hired full-time. In 1994, she was promoted to a supervisory role.

According to evidence at the 2012 tribunal hearing, in the fall of 2001, Fair developed a generalized anxiety disorder. She was subsequently diagnosed with post-traumatic stress disorder. The tribunal heard her problems were a reaction to the stressful nature of her job. She feared that if she made a mistake with asbestos removal, she could be held personally liable under the Ontario Health and Safety Act.

Between 2002 and 2004, Fair received disability benefits and then was found ready to return to work in a job that did not involve responsibility for health and safety issues. The tribunal heard there were numerous suitable jobs.

However, the school board refused to consider her for other suitable positions and she was fired in July 2004.

The head of the board’s plant services argued that all supervisors were responsible for health and safety. If Fair could not accept the health and safety risks of her previous position, she could not accept the risks of any other supervisory job.

“I think that there’s still an unfortunate incredulity about mental health issues and that a lot of people don’t perceive them as being real disabilities when they most emphatically are,” Fair’s lawyer Ed Canning, with the Hamilton firm of Ross and McBride LLP, said Wednesday.

At the hearing in February 2012, adjudicator Kaye Joachim concluded the school board discriminated against Fair on the basis of her disability. It did so by failing to accommodate her medical condition.

She gave the parties time to reach a settlement, but they couldn’t, so a second hearing was held last month.

At that hearing, Joachim rejected the school board’s argument that it was unfair to order Fair reinstated because so much time had passed. Joachim noted delays could not be blamed on Fair.

She also noted Fair mitigated her damages by looking for work since she was fired and had accepted part-time opportunities when full-time work continued to elude her.

So she ordered the board to find a suitable job for Fair, including up to six months of retraining, if required.

The award for nine years of lost wages was set at $419,284, plus interest. There could be a further adjustment for any tax consequences triggered by receiving a large lump sum.

The school board was also ordered to make retroactive payments on Fair’s behalf to the Ontario Municipal Employees Retirement System and the Canada Pension Plan.

In addition, the board was ordered to pay $30,000 for Fair’s loss of dignity caused by her poor treatment by the board. For example, the board issued an inaccurate record of employment indicating that Fair had quit instead of being fired. This false information led to a delay in the payment of unemployment insurance benefits.

Many people who apply for relief under human rights legislation do not apply for reinstatement because they can’t imagine returning to a “poisoned” work environment.

Canning, who writes an employment law column for The Spectator, says his client didn’t view this as a potential problem.

“All of the people who refused to accommodate her no longer work for the (Hamilton-Wentworth District School Board). So she is not worried about encountering animosity when she goes back to work.”

Torstar News

With files from The Hamilton Spectator