We blogged a couple of weeks ago about an employee at a restaurant who the Alberta Court of Queen’s Bench ruled may have been terminated contrary to the province’s Human Rights Act. In many cases, when someone is found to have been terminated in a way that violates human rights laws, the solution is usually to award them monetary compensation. However, in some cases, an employee may make a case that the employer is obligated to allow them to return to work. 

This was the situation in a recent decision from the Court of Appeal of Alberta. The Tribunal ordered the employer to allow the employee to return to work, only to ask what job she was entitled to. 

University terminates employee

The issue first made its way before the Alberta Human Rights Commission after the employee complained that the university she worked for had discriminated against her on the basis of a temporary mental disability. 

The employee graduated with distinction from the university in 2011 with a Bachelor of Arts. She was then successful in her application to work as an assistant at the university, where she would divide her time between the special collections in the library and the archives. Tragically, her brother died just three weeks into the job. She was profoundly impacted by this, and it resulted in her job performance not meeting the employer’s standards. A few months later, she was terminated. 

The employee filed a complaint with the Alberta Human Rights Commission, and a tribunal determined the employer had discriminated against the employee on the basis of a temporary mental disability. As a result of this finding, the employee was awarded $20,000 in damages for injury to her dignity and self-respect as well as 18 months of lost income. The employee also sought reinstatement at her job, something the employer opposed. She told the tribunal that she was not able to secure comparable employment since losing her job and said the employer operated a large and sophisticated workplace and should be able to find work for her. 

The tribunal found that reinstatement was an appropriate remedy and ordered the employer to give her a job equivalent to the one she lost, writing, “Effectively, without reinstatement, her career options are dismal.” The tribunal’s decision did not require the employer to place the employee back in the same position she had but said the employer’s library systems were large and varied enough to find a fit for her. 

Employee is not satisfied with new position

Following a December 2019 order from the tribunal, the employer told the employee it had decided to offer her a program coordinator position at the university’s School of Business. The employee declined to explore this position or meet with representatives from that department. Another position was offered temporarily to the employee in Student Services. The employer said it intended to keep looking for other positions while the employee worked with Student Services. The employee also refused this position. 

The employee applied for a mandatory injunction from the Alberta Court of Queen’s Bench. The intent of the injunction as to order the employer to “comply” with the tribunal’s order. Following that application, two additional jobs were offered to the employee after that application, but she refused both.

At this point, the employer launched a cross-application in which it asked the court to issue an order stating the employer had complied with the tribunal’s order. During a hearing the court rejected the employee’s application and ruled in favour of the employer, finding it had complied with the order. 

Did the employer meet the requirements of the tribunal’s order?

The employee appealed the chamber judge’s order on a number of grounds, including that the chambers judge misinterpreted the tribunal order, and that the chambers judge failed to consider whether she was qualified for the positions she had been offered.

The court found that the chambers judge had not misinterpreted the tribunal’s order, which stated that the employer’s libraries were “numerous and varied.” The tribunal’s decision did not offer any specific direction to the employer in regards to which department the employee must work in. The court dismissed this ground of appeal on the basis that the chambers judge correctly interpreted the order, which was consistent with case law. 

The court also considered the employee’s position that she was not qualified for the other jobs she was offered. However, the court found that no evidence was presented to it that addressed the duties of the job or how the employee was unqualified for them. The court said that had the employee attended some of the orientation meetings offered by the employer, she may have been able to offer specifics related to her qualifications. Unfortunately, her unwillingness to engage in the process left her without any evidence to support her position. 

Calgary employment lawyers representing clients in workplace discrimination and human rights disputes

The employment lawyers at HMC Lawyers regularly work with employers and employees on the legal obligations of employee/employer relationships and the implications of wrongful or constructive dismissal. We work with employers to avoid issues related to employment and are ready to assist when one comes up. We also work with employees who feel they have been wrongly terminated from their job and assist clients on matters related to human rights code complaints. Please don’t hesitate to contact us if you are an employee facing workplace harassment or an employer concerned with potential claims under the Alberta Human Rights Act or employment laws. We can be reached online or by phone at 1-800-480-3534 and would be happy to schedule an initial consultation today.