Reinstatement - LawNow Magazine

Reinstatement

Employment Law ColumnIntroduction

Many Canadians will remember the case of Lynden Dorval, the Edmonton public school teacher, who was fired by his school board for dispensing marks of zero to students who did not do their assignments. Recently the case reached the Alberta Court of Appeal on the question of whether Mr. Dorval should be reinstated to his old teaching job.

In addition to cases where wrongful dismissal has been found (especially in labour relations scenarios), reinstatement is authorized under work-related legislation, such as occupational health and safety and human rights legislation.

This article will describe that case and the circumstances where reinstatement can be an appropriate legal remedy, and where it will not be ordered.

Facts

Employers being forced to take back workers they do not want to employ, and where no mutual trust and confidence exists, is repugnant to dignity and choice.Mr. Dorval, a teacher with an excellent performance record over 35 years, was terminated from his job because he refused to follow his principal’s order requiring him to use letter codes describing “student achievement, lack of participation, or behavior related to completion of an assigned task.” Since the code was not a recognizable grade, it played no part in evaluation of the student’s performance. Students who did not complete assignments might have inflated grades compared to their peers who did the assignments, which reduced the incentive to do the assignments.

Instead Mr. Dorval gave a “replaceable zero” to students who did not complete assignments. Students were still encouraged to hand in late assignments for a grade that replaced the zero. This motivated students, promoted accountability and resulted in a work-based evaluation. Mr. Dorval was not the only teacher who defied his principal, but he was the only one disciplined for doing so. On May 17, 2012 he was suspended. Four months later he was fired. Other issues were eventually put forward, such as missing a staff meeting, not grading exams on time, returning to school property without permission and displaying an insubordinate attitude. Over the course of that disciplinary action, hostility had developed between the teacher and his administrative superiors. [Edmonton School District No 7 v Dorval, 2016 ABCA 8 (CanLII), http://canlii.ca/t/gmw5d].

Legal Outcomes

Mr. Dorval appealed his termination. The reviewing tribunal found he had been wrongfully dismissed and ordered the school board to pay him compensation. The Edmonton Public School Board took the case to the Alberta Court of Appeal where Mr. Dorval also asked to be reinstated to a teaching position in the school district.

The appellate court unanimously upheld the finding that Mr. Dorval had been wrongfully dismissed. It ordered compensation to be paid as if the teacher had been dismissed with reasonable notice and without cause.

But what if the worker wants his job back? One might assume that if the courts had concluded he was unfairly and illegally dismissed, it would be a fair and simple matter to allow Mr. Dorval to return to the classroom on the 0.6 FTE basis he sought. As it turns out, even when one is wrongfully dismissed, reinstatement to one’s earlier job is not a right. The reviewing tribunal has discretion to determine if reinstatement is appropriate and an appeal court will assess whether that decision was reasonable.

Principles for Reinstatement

Reinstatement is more common in the collective labour relations sector than in the non-union sector. Ordering an employer to take back a worker is a form of the extraordinary equitable remedy called “specific performance” of the employment contract. Normally, monetary compensation suffices. Reinstatement is one-sided in the sense that the employer cannot seek and obtain it from a reluctant employee. It is also difficult for a court to monitor the work relationship after reinstatement.

Compared to damages compensation, reinstatement should be used sparingly and only in clear cases. Reviewing authorities will consider the following before ordering reinstatement of an employee:

  • does governing legislation, such as the School Act, ordain reinstatement as a presumptive remedy;
  • what is the likely effect of reinstatement on the future relationship between the employee and the employer? Employers being forced to take back workers they do not want to employ, and where no mutual trust and confidence exists, is repugnant to dignity and choice. Reinstated workers may resume historical confrontations and disrupt the work environment. While reinstatement has long been presumed to be the remedy where dismissals are overturned in grievance arbitrations, the Supreme Court of Canada also stated this only applies where the employment relationship continues to be viable: Alberta Union of Provincial Employees v Lethbridge Community College, 2004 SCC 28 (CanLII) at para 56;
  • the employee should not be equivocal about returning to work or ambivalent about the reinstatement succeeding, including letting go of past acrimony; and
  • reinstatement is less appropriate for short-term or seasonal employments and where compensatory damages are already ordered.

As it turns out, even when one is wrongfully dismissed, reinstatement to one’s earlier job is not a right.In Milkovich v. Field Hockey Canada, 2013 BCSC 486 (CanLII), the British Columbia Supreme Court refused to reinstate the coach of the Women’s Junior National Field Hockey Team until his wrongful dismissal lawsuit was completed. The judge considered even temporary reinstatement to be an extraordinary remedy. The employer had lost confidence in his suitability for the job and reinstatement would be disruptive to the team and its new coach.

On the other hand, an Ontario judge upheld an interim reinstatement of an employee pending an arbitration outcome: National Ballet of Canada v. Glasco, 2000 CanLII 22385 (ON SC). Likewise, a Nova Scotia Deputy Minister of Justice was ordered not to dismiss a public employee before his wrongful dismissal action was decided on the merits. Smith v. Nova Scotia (Attorney General), 2004 NSCA 106 (CanLII); aff’d (2004), 244 D.L.R. (4th) 649 (N.S.C.A.); leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 498.

Mr. Dorval Not Reinstated

The Court of Appeal agreed with the tribunal’s judgment call that Mr. Dorval should not be reinstated, on the basis that the relationship between he and his employer remained irretrievably broken down, even after four years. The fact that Mr. Dorval was near the end of his active teaching career and was only seeking a 0.6 position while collecting on pension, and originally seemed less than totally confident himself that he wanted the job or could do the job, may have all been factors. One might think that the very large school board employer would have been able, more easily than other employers, to accommodate his reinstatement request by posting him at another school. In this case, it appeared to be Mr. Dorval’s own lukewarm and ambivalent desire for reinstatement expressed early in the proceedings that put this extraordinary remedy out of his reach.

Nicole Bowal is a student at the Schulich School of Engineering at the University of Calgary

Authors:

Peter Bowal and Nicole Bowal
Peter Bowal is a Professor of Law at the Haskayne School of Business, University of Calgary in Calgary, Alberta. Nicole Bowal is a student at the Schulich School of Engineering at the University of Calgary in Calgary, Alberta.
 


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