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.
Refusal to Allow Employee to Return to Work Following Her Filing of Claim for Workplace Injury Constitutes Discrimination Due to Disability and/or Perceived Disability
Ms. Pelletier was a seasonal employee, employed as a housekeeper with a hunting lodge in Dryden, Ontario, when after 13 years of employment, she was injured in the workplace. She applied for and received Workplace Safety and Insurance Act (“WSIA”) benefits until she was able to return to work, after a period of approximately 2 months.
After advising her Employer of her availability to return to work, she was told that she would be called back in a week or two as her services were needed during the deer hunt season which ran from mid-October to mid-November. When Ms. Pelletier was not called to return to work, she began leaving messages but never did hear back from her Employer.
Later, Ms. Pelletier learned that her Employer had challenged her WSIA claim, disputing that the injury had occurred in the workplace, and had issued a Record of Employment to Service Canada indicating that she would not be returning to work.
Ms. Pelletier once again made numerous attempts to clarify her status with her Employer but no response was ever received. When it became clear she was not returning to work, she found two part-time jobs to supplement her income and filed an Application with the Human Rights Tribunal of Ontario claiming discrimination in employment because of disability.
The hunting lodge owner did not participate in the hearing and the Tribunal accepted Ms. Pelletier’s uncontested evidence that her Employer’s decision not to allow her to return to work, was as a result of her being perceived as a person with a disability, in contravention of the Ontario Human Rights Code.
The Tribunal ordered the Company to pay the following amounts to Ms. Pelletier:
- $17,955.00 as compensation for lost wages; and
- $12,500.00 for general damages as a result of losses arising from the violations of her rights under the Code.
Further Reading: Pelletier v. Andy Meyers Lodge, 2014 HRTO 1633 (CanLII)