When is Reinstatement Possible for Employment Discrimination?

By Linda McKay-Panos

A worker experiencing discrimination must choose the legal avenue that will give them the result they want. For example, if pursuing the matter in court, the worker will have to start a contract claim (e.g., wrongful dismissal) or tort claim. One cannot sue in tort for discrimination, but one can sue in tort for the intentional infliction of mental suffering. The usual remedies available to the worker under tort or contract claims are money damages:

• money in lieu of notice;

• aggravated damages (if the employer terminated the plaintiff in a way that caused mental distress); or

• punitive damages (awarded in extreme cases to punish the employer for harmful behaviour).

All of these remedies have one thing in common: the court can only award money to address the losses suffered by the employee.

There are times when a worker may want money compensation, but also an apology or for the employer to introduce a discrimination policy.

In some cases, the worker may want their job back, but without having to continue to experience the discriminatory behaviour. There are ONLY two ways that a worker can get their job back:

1. For union workers, if the collective agreement allows for reinstatement; or

2. If a complaint is started under human rights legislation or occupational health and safety legislation that allows for reinstatement, and the complainant requests reinstatement. Human rights commissions usually have the ability to grant reinstatement. However, reinstatement is not possible in every situation and will depend largely on the facts of each case.

The recent Pratt v University of Alberta (Pratt) case may open the doors wider to the possibility of reinstatement. Carmen Pratt made a human rights complaint in June 2013 alleging discrimination at work under section 7(1) of the Alberta Human Rights Act (AHRA) (Pratt at paras 1, 4). The Alberta Human Rights Tribunal heard Pratt’s complaint. Chair D. Jean Munn, Q.C., held that the employer, the University of Alberta (U of A), had discriminated against Pratt on the ground of mental disability.

Further, Chair Munn held that the U of A failed to acknowledge its duty to accommodate (Pratt at para 18). After the complainant has established prima facie discrimination, the burden shifts to the respondent (the employer, in this case) to show that the treatment of the complainant was a bona fide occupational requirement or otherwise was reasonably justified (Pratt at para 154). The onus is on the employer to show that it would be impossible to accommodate the employee without undue hardship.

Chair Munn found that there was no evidence that the U of A ever considered whether Pratt needed accommodation for a disability. At a meeting on June 26, 2012, Pratt told her supervisor about her limitations and asked the supervisor to modify her job duties. At this point, the U of A had a duty ask for more information (Pratt at para 155). Chair Munn also noted that the U of A had accommodation policies in place and that it could have and should have asked Pratt to provide evidence from health professionals as to her limitations (Pratt at paras 155-156). Chair Munn concluded that there was no justification for the U of A’s failure to accommodate Pratt (Pratt at para 157).

Having found discrimination, Chair Munn turned to the remedy. This is where the parties differed:

• The Director of the Human Rights Commission asked for $25,000 to $30,000 in compensation for discriminatory treatment and lost wages for a period of 12 months.

• Pratt sought reinstatement and compensation for lost wages. She claimed she had not been able to find similar employment and that the U of A should be able to accommodate her disability given its size and sophistication (Pratt at para 168).

• The U of A argued that the appropriate range of damages for hurt feelings should be between $8,000 to $10,000 and that the claim for lost wages should be limited to the end of the six-month probationary period (August 31, 2012) (Pratt at para 158). The U of A opposed reinstatement, arguing that the employment relationship was no longer healthy. For example, Pratt had demonstrated dislike towards her supervisor.

Chair Munn awarded damages for injury to dignity and self-respect in the amount of $20,000 (Pratt at para 162). Chair Munn also ordered an award for loss of income of $34,795.40 (Pratt at para 167).

Chair Munn then looked at three previous cases where reinstatement had been ordered. In all three cases, the workplace was large and sophisticated, and there was an opportunity for the employee to be placed in a setting outside of where the discrimination had occurred. Further, the complainants did not hold any ill will toward the respondent organizations as a whole (Pratt at paras 171-177). In one case, the Tribunal found that the complainant’s career would have ended without reinstatement given the nature of his termination (Pratt at para 177).

Chair Munn concluded that:

• Pratt had been unable to secure comparable employment and is unlikely to do so, thus eliminating her career options (Pratt at para 179);

• Pratt’s pursuit of legal rights and remedies within the employment setting and beyond should not be held against her; and

• there are numerous and varied library systems at the U of A that would allow Pratt to be placed in a similar position but not in a position with her immediate supervisor where there may remain “hard feelings” (Pratt at para 180).

Chair Munn ordered that the U of A reinstate Pratt as an employee.

In conclusion, it would seem that the remedy of reinstatement may be available if:

• the employer is “large and sophisticated”;

• there is an opportunity to re-instate the person into an equivalent position but in a different setting; and

• the position is rather specialized or depends on particular training and education, and the employee’s career would likely end (e.g., teacher, police officer, library staff).

Decision-makers should consider reinstatement more often, if the facts support it.