In the majority of cases a termination permanently ends the employment. Generally a successful wrongful dismissal claim leads to the employee receiving damages for lack of appropriate notice or the manner of termination, however it is unusual for an employee to be reinstated. There are however rare cases where reinstatement is a possibility. This arises in certain cases before the British Columbia Human Rights Tribunal and the Workers Compensation Board (known as WorkSafe BC).
Reinstatement in Human Rights Cases
Under the British Columbia Human Rights Code, the BC Human Rights Tribunal has the ability to provide any “right, opportunity or privilege” a discriminated against person was denied contrary to the Human Rights Code. In employment cases, this could include reinstatement if the employee was denied continued employment due to discrimination.
An example of this comes from the case of Kalyn v Vancouver Island Health Authority (No. 3). There the complainant faced barriers in employment due to her gender, and attempted to rely on her employer’s internal human rights process to resolve this. Her internal complaint was found to have no substance by the employer, and she was terminated for allegedly gossiping and breaching the employer’s confidentiality provision when she tried to determine whether her complaint-related witnesses were contacted. The Human Rights Tribunal found that she had in fact been discriminated against, and ordered reinstatement of her employment in the case.
The Human Rights Tribunal held reinstatement was possible based on the following key reasons:
- There was no evidence her co-workers didn’t trust her, except the individuals her initial complaints were regarding;
- The employer was not able to provide any evidence of why reinstatement was not possible, rather they relied on the same arguments for why the complainant’s dismissal was justified, and the Human Rights Tribunal had already rejected those arguments.
As such, the Tribunal ordered the complainant be immediately reinstated to the same position, or an equivalent or better position. The employer also had to immediately give notice to any other employee effected by the decision. They also were required to employ an outside workplace facilitator for at least 6 months upon the complainant’s request to facilitate the reintegration into the workplace.
Reinstatement in WorkSafe BC Cases
Similar to the Human Rights Tribunal, the Workers Compensation Board has the authority to reinstate a worker to their former employment. Reinstatement is available in cases where the dismissal was a “prohibited action”. That means a worker cannot be dismissed for:
- exercising a right or performing a duty in accordance with the occupational health and safety provisions of the Workers Compensation Act;
- testifying or planning to testify on occupational health and safety matters; or
- giving information regarding occupational health and safety conditions to an employer, another worker or union representing the worker, or an officer dealing with the administration of occupational health and safety provisions.
In cases where an employee was dismissed as a prohibited action, the Workers Compensation Board will consider whether reinstatement is an appropriate option. Key considerations include the level or deterioration of relationship between the employer and worker, whether the worker would want to return to work for the employer, the duration of time that passed since the dismissal, the permanency of the employment and whether the job is still available. If these factors support reinstatement, the Workers Compensation Board has the authority to order it.
Conclusion
If you are dismissed from employment it is rare that reinstatement will be an available option. That said, if you are open to or want to return to your previous job, there are a few key situations where it is possible. If you believe your dismissal matches one of the situations above, contact us. The team at Yeager will assess your situation, and strongly pursue the right to reinstatement for you if we determine it is available.
About the Author
Dan Howitt assists both employees and employers with managing all phases of the employment relationship. His focus is helping clients achieve a fair and cost effective solution to their employment related problems, with an emphasis on negotiation and settlement. If you would like to schedule a meeting with Dan Howitt or any other of our lawyers, give us a call at 604-988-1000.
