Reference no: EM132880885

Individual Case Assignment

For this term, you are reviewing a case about dismissing an employee for absenteeism. Supervisors report that discharging an employee is one of their hardest tasks. Termination for absenteeism can be particularly difficult. If the absenteeism is related to a disability, the employer needs to consider the rules governing dismissal with notice and with cause as well as the requirements in human rights legislation. A good example of this is the following legal decision:

Honda Canada Inc. v. Keays, [2008]

This case is freely provided by the Canadian Legal Information Institute (CanLII) subject to their conditions and terms of use. You can read the full case in its entirety from the source at: Honda Canada Inc. v. Keays, [2008] 2 SCR 362, 2008 SCC 39 (CanLII)

Summary of Case

Honda Canada Inc. v. Keays, [2008]

Mr. Keays was hired in 1986 by Honda as an assembly-line worker. In 1997 he was discharged with chronic fatigue syndrome and consequently went on disability benefits until the insurer declared that he was fit to return to work. When he returned, the employer put him into its disability program, which required him to submit medical reports for every absence from work. The employer began to doubt the veracity of Mr. Keay's doctor's reports and, therefore, in 2000, ordered him to see a doctor it had selected. Mr. Keays obtained legal advice recommending that he not see the employer's doctor unless the employer clearly indicated the purpose of the examination. The employer ignored the lawyer's request and summarily dismissed Mr. Keays for cause (without notice) when he refused to meet with the employer's doctor. The employer claimed that this was insubordination, entitling it to dismiss Mr. Keays without notice.

Mr. Keays sued for wrongful dismissal. He argued that his employer did not have a contractual right to force him to attend a different doctor chosen by the employer simply because the employer did not like opinion of the employee's own doctor. Therefore, he was not being insubordinate by refusing an order that the employer had no right to make. Moreover, he argued that the requirement to submit to a medical examination by the employer's doctor amounted to harassment and discrimination on the basis of his disability and was part of a conspiracy between the employer and the doctor intended to enable the employer to dismiss him for cause after doctor issued a report saying Mr. Keays was able to work. Therefore, he argued that in addition to reasonable notice damages, he should be entitled to damages for bad faith in the manner in which he was dismissed and to punitive damages to for the employer's egregious conduct.

Questions

1. In this case, is the employer entitled to dismiss Mr. Keays without giving him notice? Why? Support your answer.
2. How would your answer above differ if it could be proven that Mr Keays' absenteeism was unrelated to his medical condition? Name the type of discipline, the process involved, and the penalty (if applicable) 
3. If the doctors inform the employer that Mr. Keays' absences are in fact due to his chronic fatigue syndrome and that they will continue in the future, should the employer be entitled to dismiss Mr. Keays? Why?