In a decision that will surely draw attention across the country, the Alberta Human Rights Tribunal has awarded an employee 5 years of back pay, $15,000 in general damages and reinstatement as result of a finding of age discrimination.
Cowling v. Alberta (Employment and Immigration)
The employee was employed as a labour relations officer for the government of Alberta under contract for eight consecutive years. The employment agreements consisted of four sequential contracts for a combined duration of eight years with a start date and a termination date for each of the four contracts. The contracts specified that either party could terminate the agreement prior to the termination date noted in each contract.
About one year prior to the renewal of the fourth employment contract, the Government notified the employee that her contract would not be renewed past the termination date primarily because it planned to restructure the position and downgrade the level and responsibilities of the job. The Tribunal found that restructuring did not provide a credible explanation for the failure to renew the employee’s contract. The Tribunal found as fact that the true purpose of the restructuring was to create a position with requirements which would likely eliminate the employee from contention for the new job, notwithstanding what the Tribunal found to be her strong qualifications.
The most surprising aspect of this decision was the remedy. The worker received 5 years of back pay which represented the period from the date of her termination to the date of the decision. The Tribunal “discounted” the award by 30% to recognize the fact that she was employed on a fixed term contract as opposed to being a permanent employee. The Tribunal further ordered that she be reinstated to her position for a period of one year and awarded general damages of $15,000.
The general damages award is consistent with the amounts generally imposed by the Human Rights Tribunal of Ontario in similar cases. The award of five years of back pay greatly exceeds what the Ontario Human Rights Tribunal has historically awarded for income loss for age discrimination (Hayes-Dana Inc (1992), 17 C.H.R.R. D/79 (Ont. Bd. Inq.) is the only case we are aware of from Ontario with a comparable damage award). It also greatly exceeds what any employee could ever expect from a court in a wrongful dismissal case, even if the employee had 40 years of service.
It is frankly difficult to reconcile the huge disparity between the damages awarded in this case and what a court would be prepared to award in a civil case.
The reinstatement remedy is also unusual in that it has been our experience that the vast majority of applicants in these types of cases do not seek reinstatement. Reinstatement is available in Ontario but is generally only awarded where the Tribunal finds that the employment relationship does not appear to be irrevocably damaged. It is our view that reinstatement will remain relatively rare in human rights cases.
The Alberta Government is appealing this decision. It will be interesting to see what a court does with it. It is our view that it is unlikely that the damage award for lost income will stand, particularly in light of the reality that the employee was hired on a temporary contract. We are of the view that courts will be very reluctant to sustain a damage award which diverges significantly from what an employee would receive in a civil proceeding.