A recent Human Rights case highlights the vastly different remedies available to employees in the Human Rights system versus the civil courts. After a 13-day hearing, the complainant in Pratt v University of Alberta received:
- compensation for 18 months’ lost wages, well exceeding pay in lieu of reasonable notice;
- general damages, including for mental distress; and
- reinstatement to a new position.
And the employer received the converse – an extremely expensive lesson in human rights law.
The Facts
The complainant started working for the University of Alberta on March 1, 2012. Shortly after, her brother tragically committed suicide. This had a devastating effect on the complainant, including contributing to her depression, which in turn contributed to performance issues at work.
According to the University, the complaint was not meeting expectations. While the evidence was not clear as to whether the University was aware of her brother’s death, it was aware that the complainant was dealing with difficult personal circumstances, had been referred to and had attended counselling, and was struggling with concentration and memory issues. In connection with performance management by the University, the complainant requested accommodation for her circumstances. The University did not explore accommodation but instead dismissed the complainant on July 5, 2012, which was within her probationary period (in this case, as a unionized employee).
The Tribunal found that the complainant’s mental health was a factor in the University’s decision to terminate her employment and provided the following remedies.
Lost Wages
The University had to pay the equivalent of 18 months’ wages, which amounted to $34,795.40. The Tribunal confirmed that compensation for lost wages following a discriminatory termination are not limited to pay-in-lieu of reasonable notice.
The concept of reasonable notice has to do with an employer’s right to terminate employment and considerations of how long it might take the employee to find comparable employment. The employer’s right to terminate employment for any reason is limited by a prohibition against discrimination. When the termination is based on discrimination, the complainant is entitled to compensation for the income lost by reason of the discriminatory conduct. [para 166]
For reference, I generated a damages quantum based on the complainant’s circumstances using Blue J Legal’s quantum service, which predicted 4-9 weeks’ notice at common law. (Blue J Legal’s Employment Foresight program uses machine learning to predict how a court would rule in a specific scenario.) We can quibble about whether skilled advocates for plaintiff or defence could get that number up or down. But it’s clear that 18 months is well in excess of common law reasonable notice. Interestingly, 18 months was the recovery period suggested by medical evidence for depression and traumatic grief of the type the complainant experienced. It seems the medical evidence set the scope of damages for lost wages.
General Damages
The Human Rights scheme allows damages for injury to dignity, self-respect and mental distress. Finding that the University’s actions were reckless and exacerbated the complainant’s mental and physical suffering, the Tribunal awarded $20,000 in general damages.
By comparison, general damages are very uncommon in wrongful dismissal actions in the civil courts.
Reinstatement
The Tribunal granted the complainant’s request for re-instatement to a new position with the University. In the six years after termination, she had been unable to secure comparable work: “Effectively, without reinstatement, her career options are dismal” (para 179). The Tribunal discounted the University’s claim that the employment relationship was no longer viable.
Reinstatement as a remedy for dismissed employees is very much a creature of statute, making this another striking departure from employee rights at common law. Indeed, at common law, starting a lawsuit against your employer can sometimes even constitute repudiation, permitting a subsequent termination without notice. Perhaps bearing that in mind, the Tribunal wrote: “While I understand the respondent’s concerns with respect to a breakdown in the employer-employee relationship, I find that an employee’s pursuit of legal rights and remedies both within the context of the employment relationship itself and thereafter cannot be held against the employee.”
Pratt v University of Alberta provides a great object lesson in some advantages of the Human Rights system for aggrieved employees.