Employer pays heavily for misconduct

As one of the original employees in Honda Canada Inc.’s Alliston, Ont., plant, Kevin Keays was proud of his record.

When he was there, his work was highly regarded. But he was often not at work.

At one point, Keays was away on disability for more than two years. Even when he returned, his absenteeism continued. As a result, Honda advised him that he would be subject to discipline. After repeatedly protesting that his absenteeism was the result of a disability, namely chronic fatigue syndrome, Honda informed him that he could apply for a human rights exemption from the attendance requirements. Keays did so and he was accordingly accommodated.

But when Keays’s absenteeism escalated in excess of his own doctor’s predictions, Honda became weary of this accommodation. Management pressured him to return to work. Co-workers, who were upset that they had to bear the burden of his absences, began to taunt and ridicule him to the point of mocking his disability in a cruel cartoon. Honda retained an occupational medical specialist, Dr. Brennan, to review Keays’s medical file and determine whether his absenteeism was warranted.

Concerned that he was about to be fired and disqualified from any kind of disability coverage, Keays retained counsel to negotiate a resolution. Brushing off Keays’s counsel, Honda unilaterally cancelled the accommodation. It advised that it no longer accepted the legitimacy of Keays’s absences and demanded that he meet with Dr. Brennan.

Keays refused to do so pending Honda’s clarification of the parameters of this proposed medical assessment. Refusing to provide that clarification, Honda proceeded to dismiss Keays for insubordination. Keays, in turn, sued for wrongful dismissal.

Scornful of Honda’s defence that Keays’s refusal to meet with the occupational medicine specialist was cause for termination, the trial judge found that the direction to meet Dr. Brennan was not made in good faith but only as the preliminary step to dismissing Keays. Not every act of disobedience, added the court, constituted insubordination, particularly where the employee has a reasonable excuse. In this case, Keays had grounds to believe that Honda’s specialist would side with the employer in refusing to acknowledge his disability.

The court was outraged by other aspects of the employer’s behaviour: It had misrepresented the advice of its own physician in constructing a thinly veiled accusation that Keays’s disability was fraudulent; it had violated the Human Rights Code by unilaterally cancelling the accommodation; it had ignored his lawyer’s letter and had its own lawyer meet with Keays directly, in violation of the Rules of Professional Conduct; it had wrongfully terminated him as an act of retaliation for his assertion of his rights.

After awarding 15 months of notice based on 14 years of service, the court increased the damages to 24 months based on Honda’s misconduct toward Keays. Concluding that even 24 months was insufficient to punish Honda for its mistreatment of Keays, the court awarded additional punitive damages in the sum of $500,000. This record award is 20 times more than the highest amount ever levied in a Canadian employment law case. Employers are well advised to heed the dire warnings of this case:

1. Disability is not cause to terminate an employee, as the Ontario Court of Appeal recently noted.

2. Disabled employees will obtain greater severance because of their difficulties in securing alternate employment.

3. Employers should authorize arm’s length, third-party medical specialists to assess medical claims of disability.

4. Staff who are not medically trained should not evaluate medical claims.

5. Accommodation should be granted for ill or disabled employees, as required by human rights legislation.

6. No accommodation should be cancelled without appropriate medical evidence.

7. The details and scope of a medical assessment directed by the employer should not be denied to an employee.

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If you, or someone you care about, is dealing with employment law issues in the Toronto, Ontario Region, contact Lang Michener LLP.

This article is taken from an interview with Howard A. Levitt,Employment Lawyer at Lang Michener LLP, a Toronto, Ontario Employment Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.