Human Rights: Remedies: Reinstatement to Inactive Employment

Few cases have considered the proposition that one remedy may be reinstatement of the employment relationship without active day to day employment. There may be a reason why the employee cannot return to active employment, usually a continuing disability.

Need for Reinstatement

Many pension plans allow for pension credits to the employee while on disability, and also other employment medical and similar benefits. It may also be important for seniority purposes or vacation entitlements which may be based on length of service. Another reason is the need for “employment” for a later recurrent disability.

This will raise also the issue of a reinstatement remedy without the necessity of active employment, but rather simply to ensure that the employment relationship remains intact for purposes of such benefits. A foundation in the form of an employer policy document or a pension plan with such terms would likely be required to support such an argument.

Human Rights

In one human rights case, the complainant, due to a vision disability, was unable to work and had been absent from active employment from April 2007 until his eventual dismissal in September of 2011. It was accepted that his medical impairment was permanent and he would be unlikely to return to active work. He continued to receive LTD benefits. ¹

The employer also continued to provide benefits and extended health care premiums. The employer alleged that it offered to maintain his employment status until his 65th birth date to maintain his group disability benefits, if the complainant paid the premiums, an offer which was declined and on which the evidence was disputed.

The complainant argued that it was not a BFOR that he report for active employment.

The claim was based on two arguments, the first being based on the threat of the termination of the benefits and health premiums, which was later rescinded and secondly, based on the termination of his employment.

The first argument became moot, as the employer withdrew this threat and had continued the benefits.

As to the second submission, an issue arose as to whether continued active employment was a pre-condition to the entitlement to continued disability payments. The determination of the argument was delayed pending the response from the employer to this issue, one which ultimately had shown that continued active employment was not such a prerequisite to continued disability benefits. The motion was successful and the claim was dismissed.

It is clear, however, that the tribunal was prepared to consider argument on the issue of reinstatement to non-active employment if this was factually required to allow for disability coverage.

The tribunal did, however, to the point at issue, note that certain disability plans require employment status ²  and referenced arbitral authority for the conclusion that active employment, in such a circumstance, would not be required for reinstatement.

Such an order of reinstatement to inactive employment was made in the decision of the Yukon Human Rights Board of Adjudication,  ³ which found liability against the respondent due to its adverse treatment of the applicant who suffered from a debilitating liver disease. An order of reinstatement was made even when the applicant was unable to return to active employment.

Arbitral Jurisprudence

This decision ⁴ provides an excellent review of arbitral case law on this subject.

On the facts of this case, the employer terminated 29 employees, all of whom were on LTD benefits, which resulted in five individual rights grievances and a policy grievance.

All employees were given notice as required by the ESA and paid the statutory severance sums. Apart from LTD benefits, which were not adversely effected, all other benefits terminated at the end of the ESA notice period.

One argument put forward by the union was that the interpretation of the collective agreement allowed for continuation of benefits during the period of the disability and hence the termination denied such benefits such as group life, accidental death and dismemberment and the prescription drug plan. Reinstatement should hence follow to allow for the continuation of such benefits became the submission.

The essential issue to be determined was whether the collective agreement contemplated the continuation of benefits beyond the basic LTD and hence precluded the company from termination due to innocent absenteeism.

To this end, arbitrator Marcotte examined many precedent cases which were factually driven and dependent on the interpretation made of the particular collective agreement in each instance.

One such cited decision ⁵ concluded that the existence of a disability plan under a collective agreement may limit the right of the employer to terminate a disabled employee, where the consequence of such action would be the loss of long-term disability or other benefits.

Returning to the decision of Arbitrator Marcotte, he concluded that the terms of the collective agreement may limit the right of the employer to terminate for innocent absenteeism.

The distinction was noted between benefits which arise directly from the illness or injury and those which are tied simply to employment. To argue that termination is not allowed due to a loss of benefits, such claim for benefits must be related to the former.

Arbitrator Marcotte summarized the arbitral jurisprudence as allowing for termination of the disabled employee provided that that the termination of employment does not interfere with the employee’s continued entitlement to LTD benefits or other benefits as allowed by the agreement, such as extended health care or dental plans.

Essentially, this involves a review of the collective agreement to determine if additional benefits were intended to be provided to the disabled employee during the period of LTD eligibility, which, in this instance, were found to be lacking and hence the termination decision was upheld.

This decision has not been referenced in human rights jurisprudence to date.

Common Law

The Ontario Superior Court in the 2007 decision of Mr. Justice Perell of Dragone v Riva Plumbing considered the motion made by the plaintiff for declaratory relief that the employment relationship remained intact to allow the plaintiff to claim coverage under medical, drug and dental insurance plans.

A dispute had arisen between the parties as to whether the employment relationship had ended due to the plaintiff`s resignation and hence the case is not demonstrative of a declaration to reinstate the plaintiff back to employment following a direct termination.

On this issue, the court found that the evidence demonstrated that there was no evidence of a clear and unequivocal intention to resign communicated by the plaintiff.

The plaintiff was not in active employment and in receipt of long term disability benefits when the application was made 14 months after her last active day of employment.

A declaration that the plaintiff remained employed was granted, in addition to an order that the employer continue to maintain medical, dental and drug insurance plans.

The Court also stated, albeit obiter, and without a definitive conclusion, that once the employer was made aware of the plaintiff`s medical disability of metastasized breast cancer, which preceded the evidentiary dispute surrounding her alleged resignation, any attempt made by it to amend the benefits coverage would have arguably been contrary to the Human Rights Code.

There is much logic in this view. There is every likelihood that a civil court would grant a similar order at the very least for the period of reasonable notice and where the evidence will support a connection of such benefits to long term disability insurance, for the period of disability.

This decision similarly has not been discussed to date in human rights cases.

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1. Hargrove v Phoenix Glass (Bernd Walter), a 2012 decision of the British Columbia Human Rights Tribunal in which the employer moved to dismiss on the submission of no reasonable prospect of success under section 27-1-c of the Code.
2. This is unusual. Most disability plans require active employment only on the commencement of the disability. There is, however, the requirement of active employment to re-apply for disability benefits once the employee has come off LTD payments, usually beyond a 90 day period.  This is referred to as a recurrent disability.
3. in its December 2008 decision of Hayes v Yukon College (Evans, Tkachuk and Riseborough)
4. of Pharma Plus Drugmarts Ltd. v United Food & Commercial Workers Canada, Local 175 (William Marcotte) released in June of 2013
5. 1982 award of Re DeHaviland Aircraft and UAW local 112 (Rayner) which was later referenced in another cited case of Re Harris Rebar and BSIOW local 734 [1988] OLAA No.107, 35 LAC (3d) 348 (Dunn)