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Ontario’s New Human Rights Policy

In mid-June, the Ontario Human Rights Commission released a new policy entitled “The Policy on Preventing Discrimination Based on Mental Health Disabilities and Addictions” (the “Disability Policy”), which builds on the Commission’s prior Policy and Guidelines on Disability and the Duty to Accommodate.

The Disability Policy covers some of the following areas: recognizing mental health disabilities and addictions, establishing discrimination, forms of discrimination, reprisal, the duty to accommodate, undue hardship, and preventing and responding to discrimination (including the development of policies, education and training). Although the Disability Policy covers protection from discrimination in the course of employment, it also applies to protection from discrimination in relation to goods, services, accommodation and housing.

Particularly important for employers to note is the Commission’s statement that when employees request accommodation due to disability, the employer is not generally to “second guess” the health status of an employee. That presumption can be overruled in a situation where there is a legitimate reason to question the employee; however the general rule is for the employer to take the request in good faith without seeking additional medical documentation. In the words of the Commission, “Where more information about a person’s disability is needed, the information requested must be the least intrusive of the person’s privacy while still giving the accommodation provider enough information to make the accommodation”.

Similarly, an organization must not ask for more confidential medical information than necessary because it doubts the person’s disclosure of his/her disability based on its own impressionistic view of what a mental health disability or addiction disability should “look like”.

As also stated in the Disability Policy, “In the rare case where an accommodation provider can show that it legitimately needs more information about the person’s disability to make the accommodation, it could ask for the nature of the person’s illness, condition, or disability, as opposed to a medical diagnosis”.

While the Disability Policy does not set out new law, it is a helpful summary of the current state of the law with respect to discrimination due to disability and the duty to accommodate, and it should be reviewed by employers dealing with mental health disabilities (including addictions) in the workplace. One note of caution, however: this is an evolving area of law, and the Disability Policy, like all policies of the Commission, do not have the force of law; they merely set out the Commission’s interpretation of the law as of the date the Policy is posted.

The Disability Policy can be found at the following link:  http://www.ohrc.on.ca/sites/default/files/Policy%20on%20Preventing%20discrimination%20based%20on%20mental%20health%20disabilities%20and%20addictions_ENGLISH_accessible.pdf.

Ontario’s New Human Rights Policy

Sanity Prevails: The Tale of a 90% Reduction to a Punitive Damages Award

In the May 2014 Ontario Court of Appeal decision in the case of Boucher v. Wal-Mart, the $1,150,000 in punitive damages previously awarded to Boucher by a jury was reduced to $110,000. The decision represents a good monetary result for Wal-Mart but it is laced with lessons for employers to keep in mind when faced with allegations of managerial harassment.

The Case:

Boucher was a 10 year Wal-Mart employee at the company’s Windsor store. After a series of promotions and good performance reviews, she was promoted to assistant manager in 2008. The following year, store manager Pinnock began a series of actions intended to harass and belittle Boucher after she refused to falsify a temperature log. Boucher complained to Wal-Mart’s senior management but her complaints were held to be “unfounded” and Boucher was told that she would be held accountable for making them. With her complaints falling on deaf ears and the harassment continuing (often in full view of other assistant managers at the store), Boucher left and claimed constructive dismissal.

The case was tried by a jury and Boucher was awarded damages as follows: (i) $1,200,000 from Wal-Mart, made up of punitive damages of $1,000,000 and aggravated damages of $200,000; and (ii) $250,000 from Pinnock, made up of punitive damages of $150,000 and damages for intentional infliction of mental suffering in the amount of $100,000. As the employer, Wal-Mart was ultimately responsible for the damages award against Pinnock. While there have been a few extremely high punitive damages awards under Canadian law, they are the exception to the rule. Needless to say, Wal-Mart appealed the decision.

The Appeal:

The Court of Appeal conducted an analysis of the different types of damages. Among other things, it confirmed that aggravated damages are intended to be compensatory, whereas punitive damages are intended to punish the wrongdoer. It also confirmed that “if the award of punitive damages when added to compensatory damages, produces a total sum that is so ‘inordinately large’ that it exceeds what is ‘rationally’ required to punish the defendant, it will be reduced or set aside on appeal.” When the damages award against Pinnock was reviewed, the court felt compelled to reduce the $150,000 punitive damages award to $10,000, although the $100,000 award for intentional infliction of mental suffering was left in place.

A similar analysis was used when looking at the damages assessed against Wal-Mart. The $200,000 aggravated damages award was permitted to stand, and the $1,000,000 punitive damages award was then reviewed in conjunction with it. Ultimately, the court decided that “an additional punitive damages award of $1,000,000 [was] not rationally required to punish [Wal-Mart] or to give effect to denunciation and deterrence”, and it reduced the $1,000,000 punitive damages award to $100,000.

Boucher ended up with: (i) 8 months of pay (which was not the subject of litigation); $110,000 from Pinnock for intentional infliction of mental suffering, together with punitive damages; and (ii) $300,000 from Wal-Mart for aggravated damages, together with punitive damages. Ultimately, $1,040,000 in punitive damages was removed from the jury’s findings, thus bringing the decision back into the reasonable range of damages which we have come to expect from Canadian courts. A lesson still remains for employers however, which is that workplace investigations need to be performed thoroughly, objectively and fairly, and a price will be paid when managers are permitted to intimidate and harass the employees that they supervise.

Sanity Prevails: The Tale of a 90% Reduction to a Punitive Damages Award

Discrimination due to Family Status – The Final Word?

In a just-released decision, the Federal Court of Appeal has confirmed that the ground of discrimination due to family status under the Canadian Human Rights Act includes parental obligations which engage a parent’s legal responsibility for a child, such as childcare obligations.  But fear not employers - parental choices such as voluntary family activities will not trigger similar claims of discrimination due to family status.

Background:

On May 2, 2014, the Federal Court of Appeal released its long-awaited decision in the case of Johnstone v. Canada Border Services Agency (“CBSA”).  Fionna Ann Johnstone had been employed by the CBSA since 1998, and her husband was employed by the CBSA as well.  After having children, Johnstone asked for accommodation to her work schedule at Pearson International Airport.  The CBSA had a complicated work schedule for its full-time employees, which included rotating through 6 different start times over the course of days, afternoons and evenings with no predictable pattern, as well as working different work days during the duration of the schedule.  The schedule was based on a 56 day pattern and subject to change on 5 days’ notice.  Johnstone could not find a caregiver due to her schedule and her husband was unable to cover her work days with any certainty as he was subject to the same unpredictable schedule, albeit one that was not coordinated with hers.

Johnstone requested accommodation in the form of a fixed full-time schedule but was only offered a fixed part-time schedule.  Interestingly, the CBSA had previously accommodated disabled employees with a fixed full-time schedule, but it refused to do so in this case because it felt it had no duty to accommodate Johnstone’s childcare responsibilities.

The case moved through a long and circuitous route beginning in 2004 from the Human Rights Commission to the Federal Court, back to the Human Rights Tribunal and finally to the Federal Court of Appeal (with judicial review of some decisions along the way).

The Decision:

After reviewing the law in great detail, the Federal Court of Appeal determined that family status includes childcare obligations which a parent cannot neglect without engaging his or her legal liability.  The court was careful to confirm however, that voluntary family activities such as family trips and extracurriculars do not fall under the family status protections, as they result from parental choices rather than obligations.

In turning to whether or not a prima facie case of discrimination due to family status has been made out, the court stated that an employee must be able to demonstrate the he or she has unsuccessfully sought out reasonable alternative childcare arrangements, and is unable to fulfill his or her parental obligations as a result.  More particularly, the court invoked a four-part test under which the individual making the claim of discrimination must show: (i) that a child is under his or her care of supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for that child, as opposed to a personal choice; (iii) that he or she has made reasonable but unsuccessful efforts to meet those childcare obligations through reasonable alternative solutions; and (iv) that the workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the childcare obligations.

Based on all of the above, the Court upheld the finding in favour of Johnstone, together with most of the remedies awarded by the lower court (lost wages and benefits from 2004; $15,000 for pain and suffering; $20,000 in special compensation due to the fact that CBSA was found to have engaged in a discriminatory practice wilfully and recklessly).  In addition, the CBSA was ordered to consult with the Canadian Human Rights Commission to develop a plan to prevent future incidents of discrimination due to family status.

There remains just one ground of appeal left for this matter, and it will be interesting to see whether the CBSA moves for leave to appeal to the Supreme Court of Canada.

 

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Discrimination due to Family Status – The Final Word?

Upcoming Ontario Ministry of Labour blitzes

Ontario’s Ministry of Labour has announced several upcoming blitzes during which it will ensure that employers in specified industries are compliant with particular areas of concern under the Employment Standards Act, 2000 (“ESA”).  Both provincial and regional blitzes have been announced.

A recent posting on this blog dealt with the issue of unpaid internships, in follow-up to the announcement by Toronto Life magazine and The Walrus magazine that they were ending their unpaid internships following recent government inspections.  Those inspections were part of the announced blitz with a focus on interns, which began in April and will continue until June in the areas of marketing/public relations, software development, retail, media, film and entertainment industries.

Also on the horizon is a provincial blitz to focus on vulnerable and temporary foreign workers which has been announced for the period from September to November 2014 in the following industries: restaurants, building services, personal care services, business support services and agriculture. 

Finally, that will be followed in early 2015 with a provinncial blitz on temporary help agencies, in order to ensure that they are compliant with the laws relating to temporary help workers.

On a regional level, Simcoe, Peel, Dufferin & York veterinary clinics and security service firms will undergo a general ESA blitz in June and July of 2014.  At the same time, Toronto and Durham region car dealerships and supermarkets will also undergo a general ESA blitz.  Ottawa, Kingston, Peterborough, Hamilton, Kitchener/Waterloo, London and Windsor seasonal businesses and tourism-related businesses will see their own general ESA blitz from June through August and finally, professional offices in Northern Ontario will see a similar blitz in June and July.

It is always good to have your house in order; however, for companies which may be targeted by one of the blitzes noted above, it is of particular importance that your business be compliant with the ESA.

For more information, the Ministry’s announcement can be found at the following link:  https://www.labour.gov.on.ca/english/resources/blitzschedule.php.

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Upcoming Ontario Ministry of Labour blitzes

Compliance Reminder – Accessibilty for Ontarians with Disabilities Act

The Accessibility for Ontarians with Disabilities Act (“AODA”) has been around for a while.  So what’s the big deal now?

For starters, recent Freedom of Information Act requests have demonstrated that about 70% of Ontario private sector employers with 20 or more employees have not yet complied with required self-reporting requirements to demonstrate that they are compliant with the AODA.  Perhaps more importantly, most private sector employers with 20 or more employees don’t even realize that they have certain obligations under the AODA as of January 1, 2014.

While reference should be had to the legislation for particulars as to the imminent requirements, the following should serve as a high level overview of what needs to be done by certain employers.

1.  Public sector employers with 20 or more employees are to file a compliance report with the Ontario government by December 31, 2013, confirming that they are currently compliant with the Accessibility Standards for Customer Service.  The filing can be done online.

2.  By January 1, 2014, those same employers must also develop policies governing how they will meet their requirements under the Integrated Accessibility Standards.   In addition, a multi-year accessiblity plan must  be developed, posted on the organizations’ websites, and provided in an accessible format upon request.

3.  For employers with 50 or more employees in Ontario that are launching a new website or undertaking a significant website refresh after January 1, 2014, the website is required to conform to the World Wide Web Consortium Web Content Accessbility Guidelines 2.0 Level A unless an exception applies or the company can demonstrate that meeting the guidelines is not practical.

Because most Ontario businesses are not compliant with the AODA, the Ontario government has begun issuing notices of non-compliance and has indicated that it intends to pursue businesses which are non-responsive.

For further information, see the Ontario government’s website on AODA requirements: http://www.mcss.gov.on.ca/en/mcss/programs/accessibility/

 

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Compliance Reminder – Accessibilty for Ontarians with Disabilities Act

Human Rights claims in the Ontario courts – Now What?

Way back in 2008, the Ontario Human Rights Code was amended to permit human rights claims to be piggybacked onto wrongful dismissal actions in the Ontario courts.  Prior to that time, the only recourse for an employee with a discrimination claim was to make a complaint to the [then] Human Rights Commission.  Some 5 years later, the Ontario Superior Court of Justice has recently released its very first decision in a joint wrongful dismissal/discrimination action.

The case in question was the September decision of Justice Grace in Wilson v. Solis Mexican Foods Inc.  Patricia Wilson was a 16 month employee at the time of her termination, and off work due to back problems.  The reason given for Ms. Wilson’s termination was a corporate reorganization, but the court found that reasoning “[defied] common sense” as Ms. Wilson was never told about the impending reorganization while it was taking place.  The court looked closely at the communications between Ms. Wilson’s doctor and employer, and found that the only conclusion that could be drawn was that the employer was not happy with Ms. Wilson’s ongoing back problems and absences from work, or her requests for accomodation.  Justice Grace reiterated that as long as an employee’s disability is a factor in the decision to terminate, there will be a finding of discrimination.  That is the case whether the disability is the sole factor or simply one small factor in the decision-making process.  In this case it was clear to the judge that Ms. Wilson’s back problems were a significant factor in the decision to terminate, but the result would have been the same even if her back problems were but one factor along with the reorganization.

Having determined that Ms. Wilson had been discriminated against, the court awarded her $20,000 due to the fact that she “lost the right to be free from discrimination” and experienced “victimization”, and due to the fact that the employer orchestrated her dismissal and was disingenuous both before and during the termination.  That amount was in addition to the damages received in lieu of notice of termination.

Interestingly, the court did not comment on whether or not reinstatement of employment was an option, thereby leaving that issue to another court on another day.  While employees pursuing complaints at the Human Rights Tribunal can seek reinstatement, and while the Human Rights Code appears to permit courts to make similar orders, we still have no guidance as to whether reinstatement will become a tool used by our courts.

To view the decision, click here:  http://canlii.org/en/on/onsc/doc/2013/2013onsc5799/2013onsc5799.html

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Human Rights claims in the Ontario courts – Now What?

Technology in the Workplace

I have trouble programming my television and need my teenage daughter to lend a hand.  I also know that I am not alone in this world of rapidly changing technology.  It is of little wonder then, that even the best HR professionals can sometimes use a reminder of best practices when it comes to the use of technology in the workplace.  This ever-changing area encompasses so many technological issues that this is only intended to provide a very high level overview.

Workplace Surveillance:

For employers in a unionized workplace or employers which are federally regulated (eg. banks, telecoms), collective agreements and federal privacy legislation respectively  set out strict parameters with respect to what sort of workplace surveillance is permitted.  For employers in B.C., Alberta and Quebec, applicable provincial privacy legislation may also set out parameters with respect to permitted workplace surveillance.  For all other employers, the workplace surveillance findings of the Privacy Commissioner of Canada are instructive but not generally applicable.

With regard to the Privacy Commissioner’s findings, the use of video surveillance and GPS is generally not permitted for productivity management although it may be permitted if the employer can show a bona fide safety or security reason for the surveillance.  In those cases, employees should be given advance written notice of the surveillance and the surveillance must be reasonable in scope.  On the other hand, unionized workplace arbitration findings sometimes permit keystroke monitoring to manage productivity, but it is considered intrusive and other means of monitoring productivity should be used if possible.

Computer Use in the Workplace:

Much has been written about the extent to which employers can monitor an employee’s computer use in the workplace, particularly in light of the Supreme Court of Canada’s 2012 decision in the case of R v. Cole.  In that decision, the court held that employees have a reasonable expectation of privacy in connection with personal information on workplace computers.  This criminal decision involving Charter rights is only directly applicable to public sector employers, but it gives employers some idea of where the courts may go on this issue in the future.

As a result of this decision and the apparent desire of the courts to protect employee personal information even when located on company property, it is absolutely necessary for employers to have a computer use policy which confirms that: (i) the employer’s computer systems are company property and should only be used for company business; and (ii) employees should understand that they have no expectation of privacy when it comes to personal information when using the employer’s computer systems.  Employees should be regularly reminded about the policy and asked to confirm their understanding and agreement.

Teleworking:

The two biggest issues with allowing employees to work from home are productivity and confidentiality.  With respect to confidentiality, employers should assist in the set-up of the home office and insist upon some or all of the following protections: (i) home computers which are password enabled, email encrypted, firewalled and/or subject to biometric ID; (ii) all company work must go through the company’s internal network through a platform such as Citrix; (iii) sensitive company and customer information should not be maintained on laptop computers, cell phones or other portable devices; (iv) hard copies of sensitive company or customer information kept at home should be stored in a locked filing cabinet; and (v) home computers used for work purposes should not be accessible to family members.  It is also a good idea to conduct periodic checks in order to ensure that your employees are following proper procedures.

Social Media:

If your organization decides that it wants to permit social media in the workplace, drafting a good policy is your starting point.  Among other things, the policy should: (i) make it clear that employees cannot use social media to disclose company or customer confidential information, engage in workplace gossip, do anything discriminatory or harassing, or otherwise say anything which might harm the company or its customers; (ii) advise employees that their use of social media may be monitored; (iii) advise employees that the use of social media at work is for work-purposes only; (iv) require workplace bloggers to identify themselves by their real names and make it clear that the views expressed are not necessarily those of the organization (unless the organization requires blog entries to be approved prior to posting); and (v) require employees to have a stand-alone work account for their blogs so that they do not use a personal account for work-related matters.

On-Line Recruiting:

To understand what you can and cannot do on an on-line basis when it comes to recruiting, you need to understand what you can and cannot do off-line.  One of the general rules of thumb is that you cannot make a decision to not hire based on an employee’s age, race, religion, ethnicity, sexual orientation, etc.  If an employee is looked up online before a decision is made whether or not to hire, or even whether or not to interview, one runs the risk of finding out something about the employee’s personal background which could lead to a Human Rights complaint.  As a result, it remains best practice to interview first, and then make any hiring decision subject to reference checks and other background checks (and to obtain the prospective employee’s consent for those checks before undertaking them).

Closing:

Although technology is ever-changing and some of the issues set out above will become non-issues with the passage of time and technologies, the one constant thread which runs through most of these issues is the need to have strong policies which outline what is and isn’t permitted in the workplace.  Notwithstanding the same, employers should be aware of the fact that employees may have reasonable expectations of privacy in the workplace, even when using company technology.

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Technology in the Workplace

Changes May be Coming to Ontario’s Minimum Wage

On July 17th, the Ontario Ministry of Labour announced that it has appointed a Minimum Wage Advisory Panel, chaired by Anil Verma, Professor of Human Resource Management at the University of Toronto’s Rotman School of Management.  It is intended that the panel will examine the province’s current minimum wage policy and provide advice on how Ontario should determine the minimum wage in the future.  The Ontario government’s recent announcement stated that the panel will also recommend a process to set future minimum wages in a way that is both fair to workers and predictable for businesses. 

The panel intends to consult with business and labour groups, workers, anti-poverty advocates, young workers, and academics.

Interestingly, the current Ontario general minimum wage is $10.25 per hour, which is a 50% increase since 2003.  As well, Ontario already has one of the highest minimum wages in Canada.  That said, Ontario is one of only three provinces which does not have a formal mechanism for calculating or adjusting the minimum wage.  It can be expected, therefore, that the panel is likely to endorse some sort of mechanism as part of its report.

Interested parties are invited to make submissions to the panel prior to October 18, 2013.  Submissions may be made to the Minimum Wage Advisory Panel by mail to 400 University Avenue, 12th Floor, Toronto, Ontario, M7A 1T7, by fax to (416) 326-7650, or by email to minimumwage@ontario.ca.  In addition, interested parties can make online submissions through the Ministry’s website:  http://www.labour.gov.on.ca/english/es/submissions.php.

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Changes May be Coming to Ontario’s Minimum Wage

Receipt of Pornographic Material was not Just Cause for Dismissal: Appeal Court

In the 2001 case of McKinley v. B.C. Tel, the Supreme Court of Canada ruled that a contextual approach is required in order to determine whether there is just cause for termination of employment.   A recent wrongful dismissal case involving receipt of pornographic material illustrates how the contextual approach will be applied by courts.

In February 2013, the Court of Appeal of New Brunswick upheld a lower court finding in the case of Asurion Canada v. Brown and Cormier,  to the effect that dismissal without notice was a disproportionately severe penalty for receiving pornographic emails at work.  At the time of termination, Cormier had been with Asurion for 8 years and was a call centre supervisor.  Brown was employed by Asurion for 9 years and was vendor payables specialist.  Both men had a good employment history with the company.  Both men, unfortunately, also had a mutual friend who liked to send them pornographic emails.

During the period from mid May to mid July 2010, Cormier and Brown were sent over a dozen unsolicited emails from their friend.  The emails were promptly sent to home email accounts and deleted.  They were not shared with anyone at work. When Asurion became aware of the emails in July as a result of its network monitoring system, both men were dismissed immediately due to breach of the company’s policies and breach of trust.

While the company did have a policy which prohibited “accessing, transmitting, receiving or storing discriminatory, profane, harassing or defamatory information”, the court found that the policy was not reasonable given that: (i) ”receiving” information does not involve a positive act; and (ii) the emails in question were unsolicited.  More importantly, the court confirmed that the response of the company was not proportionate to the actions of the employees.  In particular, these longstanding employees had unblemished records, none of the emails were shared with fellow employees, and the images attached to the emails fell within the category of “perfectly legal adult pornography” and were not in violation of the Criminal Code of Canada.

Asurion had an employee handbook with a comprehensive Computer Use and Harassment policy.  The company’s employees were required to read the company’s policies and there was some suggestion that they were reminded of the Computer Use policy each time that they logged onto their work computers.  The company went even further, and used a network monitoring system in order to ensure that the policies were being complied with.  Ultimately it was all for naught, as the policy was found to be unreasonable and the application of it was disproportionately severe when viewed through the lens of the employees’ years of service and specific actions or inactions in the case at hand.

This recent decision serves as a good reminder that any time a termination for cause is being considered, the employer should consider not just the offending actions of the employee, but the other relevant circumstances of the employee’s employment.

Asurion Canada Inc. v. Brown and Cormier, 2013 NBCA 13 (CanLII)

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Receipt of Pornographic Material was not Just Cause for Dismissal: Appeal Court

Reinstatement of Employment Ordered – a Decade after Disability Leave Commenced

In a March 2013 decision that is likely to be challenged in the courts, the Ontario Human Rights Tribunal has ordered the reinstatement of an employee a decade after she went on disability leave, together with loss of wages from June 2003 until the date of reinstatement.

In a 2012 decision in  Fair v. Hamilton-Wentworth District School Board, adjudicator Joachim found that the respondent school board had discriminated against the employee by failing to accommodate her disability.  In particular, in 2001 she developed an anxiety disorder as a result of the highly stressful nature of her job, and went on long-term disability.  She was subsequently assessed as capable of gainful employment in 2004.  From mid 2003 onwards however, the school board failed to take any steps to offer her available alternative work, even though similar jobs were advertised and the employee underwent job hardening in positions for which the employer was seeking employees.

In March 2013, adjudicator Joachim rendered her decision in relation to the remedy for this case of discrimination.  She found that because: (i) the employee had commenced her initial complaint with the Ontario Human Rights Commission only 4 months after her employment was terminated; (ii) the delay was largely at the hands of the Commission; and (iii) the employee had confirmed that she was seeking reinstatement when her application was subsequently filed with the Tribunal, there was no good reason to not order reinstatement due to the passage of time.

As a result, the employer was ordered to reinstate the employee despite her absence from work for almost a decade.  In addition, the employer was ordered to pay the employee’s lost wages, benefits, expenses and pension contributions over that period of time, which amounted to over $400,000 (subject to any employment insurance and related deductions).  Finally, adjudicator Joachim awarded the Applicant $30,000 as compensation for the injury to her dignity, feelings and self-respect.

Despite the likelihood of an appeal, this is an important decision as it illustrates the potential liability associated with a failure to return an employee to work after his or her disability leave.

Hamilton-Wentworth District School Board, 2013 HRTO 440 (CanLII)

 

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Reinstatement of Employment Ordered – a Decade after Disability Leave Commenced