Reinstatement — Ontario Employment Law

Reinstatement is the legal remedy of returning a dismissed employee to their former position, essentially undoing a termination. In Ontario employment law, whether this remedy is available depends heavily on the specific circumstances of the dismissal and whether the workplace is unionized.

For non-union employees pursuing a standard wrongful dismissal claim in civil court, reinstatement is exceptionally rare. Under common law principles, courts recognize that the employment relationship is built on mutual trust. Once that trust is broken by a termination, judges are highly reluctant to force an employer to take an employee back. In these situations, the primary legal remedy is financial compensation (damages or severance pay) to cover the reasonable notice period.

However, reinstatement is a powerful and frequently used remedy under specific statutory frameworks in Ontario. The Employment Standards Act, 2000 (ESA) imposes a strict obligation on employers to reinstate employees returning from protected leaves, such as pregnancy, parental, or sick leave. Upon their return, the employee must be placed back in their original position, or a comparable one if the original role legitimately no longer exists, with the same pay and benefits.

Similarly, specialized tribunals possess the authority to order an employer to give a worker their job back. If an employee is fired as a reprisal for exercising their workplace safety rights under the Occupational Health and Safety Act (OHSA), the Ontario Labour Relations Board (OLRB) can order reinstatement. The Human Rights Tribunal of Ontario (HRTO) holds similar powers if an employee is terminated in violation of the Ontario Human Rights Code. In unionized environments, labour arbitrators regularly order reinstatement if they conclude an employee was fired without just cause.

Another critical context for reinstatement involves the legal concept of "mitigation." Occasionally, an employer might terminate an employee by mistake or in the heat of the moment, and shortly thereafter offer them their job back. If the workplace is not toxic and the offer is identical to the previous terms, refusing the reinstatement offer might be viewed by a court as a failure to mitigate financial losses, which could drastically reduce the employee's severance entitlement. Because the availability and strategy surrounding reinstatement vary significantly across different avenues of law, having the specific facts of a dismissal evaluated by an employment lawyer is highly recommended.