A record-setting human rights case that cost the Hamilton public school board almost half a million dollars in back pay and damages should serve as a lesson for employers, a local legal expert says.
The school board, the Human Rights Tribunal of Ontario ruled in February, failed to accommodate employee Sharon Fair’s disability.
Fair suffered from anxiety, depression and post-traumatic stress disorder after seven years as the Hamilton-Wentworth District School Board’s supervisor for asbestos removal.
Fair went on long-term disability and was eventually fired after the board deemed her unsuitable for any supervisory role, despite multiple medical assessments and an expressed desire to return to work.
“The law is very concerned about the rights of people who have disabilities,” said labour law specialist Jim Fyshe, of Fyshe, McMahon LLP.
“Psychiatric disabilities are just as real as physical disabilities like bad backs or broken bones. They’re complex to deal with but they have to be taken seriously.”
Fyshe cautions employers — especially large public ones — to take these obligations very seriously — “or the consequences could be catastrophic.”
In Fair’s case, in a subsequent tribunal hearing on March 14, adjudicator Kaye Joachim orderedthe Hamilton-Wentworth District School Board (HWDSB) to pay $419,284 plus interest for nine years of lost wages, with a potential adjustment for any tax consequences triggered by receiving a large lump sum.
The school board was also ordered to make retroactive retirement and pension payments on Fair’s behalf.
It was also ordered to pay $30,000 in damages (an amount Fyshe says is high for these types of cases)for Fair’s loss of dignity caused by her poor treatment by the board.
An inaccurate record of employment issued by the board indicated Fair had quit instead of being fired, which led to a delay in the payment of unemployment insurance benefits.
In addition, the adjudicator’s ruling said, emails sent by the board’s disability management co-ordinator to a physician assessing Fair “attempted to influence” the expert’s report by requesting that she “identify REAL … limitations/restrictions, fitness to return to work, separate from preference.”
The board’s co-ordinator also wrote in emails that Fair had a “skewed sense of entitlement,” calling her “extremely manipulative” and an “extremist,” the ruling noted.
The school board declined to comment as the matter is still before the courts for a judicial review. The board has appealed the decision.
The World Health Organization estimates there are more than 100,000 asbestos-related deaths each year.
Fair started at the HWDSB in 1994. In 1998, she became the asbestos response team supervisor, a job she held for seven years.
In 2001, the stress of dealing with the deadly carcinogenic became too much and Fair had a breakdown, stemming from fears that she could be held personally liable for a breach of the Occupational Health and Safety Act.
Fair was hospitalized for her anxiety and subsequently diagnosed with depression and post-traumatic stress disorder.
After receiving long-term disability benefits, she expressed interest (and was approved medically) to return to work, though not in a role that “entailed responsibility for health and safety issues.”
While the board’s argument for firing her was that virtually every supervisor job entails responsibility for health and safety, the adjudicator ruled the board did not appropriately seek clarification from the physicians involved that this referred to jobs with the “same level of liability.”
The adjudicator ruled there were appropriate opportunities from June 2003 for which Fair could have been placed, either temporarily or permanently, which were ignored by the board.
The board “failed actively, promptly and diligently to canvass possible solutions … for accommodation,” the adjudicator concluded.
Fair — through her lawyer, Ed Canning, of Ross and McBride LLP — also declined to speak to the media Thursday.
The review process is expected to take five or six months to get to court.
Until then, Fair will not receive any money or be allowed to return to work.