Reinstatement as a Human Rights Remedy: When Jurisdictions Collide

31 Pages Posted: 6 Feb 2014 Last revised: 25 Feb 2015

See all articles by Michelle Flaherty

Michelle Flaherty

University of Ottawa, Faculty of Law

Date Written: January 8, 2014

Abstract

Although the power to reinstate has been a long-standing component of human rights legislation in Canada, it is little used. Human rights applicants only rarely seek reinstatement and human rights tribunals across Canada have ordered reinstatement in only a handful of cases. Interestingly, even in those limited cases where human rights tribunals have reinstated an employee, there has been little discussion of the applicable principles. Human rights tribunals have not fully fleshed out how to determine whether reinstatement is the appropriate remedy, nor have they developed clear guidelines as to how employees should be compensated in circumstances where they are not reinstated. This stands in stark contrast to the unionized environment. In that context, where an employer fails to establish just cause for termination, reinstatement is the presumptive remedy and a grievance board or arbitrator will refuse to reinstate an employee only in exceptional circumstances. A significant body of arbitral jurisprudence has developed around the remedy of reinstatement, the exceptional circumstances in which it will not be ordered, and the principles governing compensation in lieu of reinstatement.

This paper considers whether human rights tribunals should apply the principles emerging from arbitral jurisprudence or whether they should maintain a distinct, human rights approach to reinstatement. This is a potentially significant issue because human rights tribunals and labour arbitrators often deal with similar issues. In Ontario and British Columbia, labour arbitrators do not have exclusive jurisdiction, and a unionized employee may opt to file a human rights complaint rather than go through the grievance arbitration process.

Keywords: reinstatement, human rights, human rights remedies, labour arbitration, employment rights, labour rights

Suggested Citation

Flaherty, Michelle, Reinstatement as a Human Rights Remedy: When Jurisdictions Collide (January 8, 2014). Available at SSRN: https://ssrn.com/abstract=2381292 or http://dx.doi.org/10.2139/ssrn.2381292

Michelle Flaherty (Contact Author)

University of Ottawa, Faculty of Law ( email )

57 Louis Pasteur Street
Ottawa, Ontario K1N 6N5
Canada

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