A letter of reference is a key term in a wrongful dismissal matter. It would be prudent in most situations to include the actual letter as a term of the settlement. Attach it as an appendix, along with a provision that the oral references are consistent with the content of the reference letter. In some situations, it is stipulated that the oral references are confined to what is stipulated in the reference letter. This way you have made the reference letter and the oral references an actual term of the settlement.
In 2008 Section 46.1 of the Ontario Human rights Code was enacted enabling individuals to sue for human rights violations within the context of a civil action for wrongful dismissal. This provision empowers the Courts to award remedies for human rights violations. The Ontario Superior Court of Justice in Wilson v. Solis Mexican Foods Inc. (September 12, 2013) awarded an employee $20,000.00 for human rights damages on account of being discriminated against due to disability.
The Employee (“Wilson”) had worked for the Company for 1 ½ years in a middle management position earning $65,000.00 plus benefits when she was terminated. At the time of termination, she was 54 years of age. The Court determined that the reasonable notice period was three (3) months. The significance of this case is the Employee’s human rights claim. The Employee started to suffer from back pain and brought this to the Employer’s attention at the end of her first year of employment (December 2011). Up until that point, the Employee had been assessed at a grade of satisfactory or better. Once she had brought the back pain issue to her Employer’s attention, there was a shift in the Employer’s attitude towards her.
In March, 2011, the Employee provided the Employer with a doctor’s note advising she was unable to work until further notice. A few weeks later the Employee provided the Employer with a doctor’s note advising that she was medically capable of returning to work on a “graduated return to work” basis. The Employer advised the Employee that this was unacceptable. The Employee’s doctor completed a Functional Abilities Form in April, 2011 advising that she could return to work on a full-time basis provided her duties would involve a combination of sitting, standing and walking. The Employer again refused to accommodate her return to work and advised the Employee by letter dated April 14, 2011 that they were concerned about her ability to perform her job given the restrictions reported by her doctor. The Employee’s employment was terminated without cause shortly thereafter. The Employer claimed that the reason for the termination was that a part of the organization had been sold and as such, as a result of these organizational changes, many of her job functions were now redundant.
The Court did not accept the Employer’s reasons and found that the Employee was terminated “in whole or in part because of her disability”. The Employee was awarded $20,000.00 in general damages as compensation for being discriminated against and as compensation for her hurt feelings, the loss of her self-respect and her dignity.