Archives for January 2009

Employers may be relieved now that the Supreme Court of Canada has reversed steep punitive damages in a high-profile wrongful dismissal case involving a disabled worker. But accommodating the needs of employees who have disabilities – in particular depression – is not getting any easier, says Queen’s IRC Facilitator Anthony Griffin. Griffin is counsel for the Ontario Human Rights Commission, which intervened in Keays v. Honda Canada, a case that has been watched closely by Canadian employers for the past four years. (The views expressed are his and do not purport to be the views of the Commission.)

Is the status of employees with disabilities in the Canadian workplace being transformed?

Overwhelmingly, yes. Twenty years ago, if you looked at the percentage of people with disabilities who were unemployed, it was embarrassing. If you look now, it is saddening but not embarrassing.

A huge level of understanding has developed since disability was included in the Charter of Rights and Freedoms. Also, disability was included in the Human Rights Code in 1985. So until 1984, an employer in Ontario could say, ‘I’m not hiring you because you have a disability,’ and you’d have no recourse.In addition there is the duty to accommodate, which was added in 1988. The Supreme Court has wrestled with what that means, but now pretty much everybody understands that you have to really go to the mat in terms of protecting the rights of people with disabilities when it comes to employment.As a result of these factors, the status of employees with disabilities has been transformed significantly.

Why did the case of Keays versus Honda Canada generate so much interest among Canadian employers?

In June 2008, the Supreme Court decision reversed decisions that had been made in the lower courts relating to the highest punitive damage award ever against an employer in a wrongful-dismissal case – originally set at $500,000.

In 2000, Kevin Keays, an employee of Honda Canada who had chronic fatigue syndrome, was fired after he refused to attend a medical assessment with the company’s doctor. The trial judge, Mr. Justice John McIsaac of the Ontario Superior Court, found in 2005 that Honda wanted to fire Keays, so it wouldn’t have to accommodate his needs.

If that’s your conclusion, you have a sense that Honda did a really bad thing – and that’s why Justice McIsaac went way over to one side and ordered $500,000 in punitive damages, in addition to extending the wrongful dismissal period from the usual 15 months to 24 months in lieu of notice because of the abusive actions that Honda had taken.

This decision created shock waves among employers across the country.

Absolutely. Then the case went up on appeal, and in late 2006 the Ontario Court of Appeal upheld McIsaac’s conclusion that there was wrongful dismissal; it upheld the extension of the notice period from 15 to 24 months; and it said, yes, punitive damages should be awarded. However, it said the number should be reduced from $500,000 to $100,000 in damages.

Then Honda appealed to the Supreme Court of Canada. This case was remarkable: typically on appeal, cases do not get retried. Honda v. Keays got retried in the Court of Appeal, and it got retried in the Supreme Court of Canada. And the Supreme Court took a very different view of Honda’s actions.

So does this latest ruling mean employers may now breathe a collective sigh of relief?

In the Supreme Court, Honda didn’t challenge wrongful dismissal. One of the biggest things in this case is that the Supreme Court set aside the extension from 15 to 24 months in lieu of notice, and also concluded that punitive damages would not be awarded.

Employers are reassured to see that as a result of this decision, the original, high punitive damages are unlikely to become the norm.

They are also relieved because, before, all you had to prove was that the manner of dismissal was nasty. Now you have to prove that it caused mental distress. So employers for the past 10 years have faced so-called Wallace damage claims in almost every wrongful dismissal case – and I assure you, almost every plaintiff’s lawyer pleaded it. Now the plaintiff will have to come up with a doctor’s opinion relating the plaintiff’s mental anguish to the manner of dismissal.

How did the Supreme Court view Honda’s actions?

The court looked at it this way. Honda has an employee with chronic fatigue syndrome. Honda has been told to expect he’ll be off in the neighbourhood of, say, four times in a month. Then he’s away eight times a month. So Honda says, ‘We’d like you to come in and talk to one of our doctors,’ – and he refuses. If you look at it from that perspective, you might think Honda is trying to help manage his absenteeism, and didn’t do anything wrong.

Honda’s program that permitted people to be absent required them to produce a doctor’s note. The court said it’s okay to ask for medical validation of a leave of absence.

So has a new precedent been set, or are any issues still up in the air for managers?

You asked me whether employers can now breathe a sigh of collective relief. The answer is an overwhelming yes.

One of the biggest things in the Supreme Court decision is that it says it’s okay to ask for doctor’s notes when you are excusing absences from what would otherwise be progressive discipline.

So can employers ask someone to see the company doctor? Yes, but only when the information provided by the employee’s doctor is insufficient to let the employer answer this question: ‘Can this person do this job; can we modify this job so this person with this disability can do it.’ The Keays case was simple on one level. When he was there he could do his job and the only need associated with his disability was periodic absences. The tougher cases are the ones in which the questions above need to be answered.

So we all agree that an employer can manage absenteeism with progressive discipline. If you are away too often, we are going to have you in for a talk, give you a verbal warning, give you a written warning, suspend you, and if you keep not coming in regularly, we will fire you. That’s perfectly fine. That’s Column A: those are absences that can lead to discipline.

Column B has got to be absences that can’t lead to discipline. Those are absences caused by a disability. So employers are always trying to figure out, ‘How do I determine which absence goes in Column A and which into Column B?’

And now they can say, ‘The absences in Column B go there as long as they are supported by a doctor’s note, and won’t be subject to progressive discipline.’ This has certainly clarified things quite a bit.

What is the remaining difficulty?

Part of the difficulty when you have someone like Mr. Keays, who has chronic fatigue syndrome – and it’s going to be similar if someone has fibromyalgia or depression – is that the absences are essentially self-reporting.

Say Mr. Keays wakes up one day and says, ‘I feel so rotten today I can’t drag myself in to work,’ so he has to go to his doctor. The doctor knows he has CFS, he goes in and says, ‘I feel so dragged out today I can’t go to work,’ so the doctor basically says, ‘He’s not going to work today as he has CFS.’

That’s not really much more information than Keays had to begin with. What is the doctor adding to it? Similarly, if someone has depression and says, ‘I feel so down today I can’t go to work,’ and he or she goes to get a doctor’s note, what does it add for the doctor to say, ‘He’s feeling so down he can’t go to work’?

Are there better alternatives employers can adopt for monitoring absences?

The minority in the Supreme Court referred to this. They wrote: ‘While monitoring employee absences certainly remains a valid objective, this can be done in a variety of ways. Requiring a doctor’s note for each absence is only one alternative. Others include seeking semi-regular updates from an employee’s physician or requiring doctors’ notes only when the number of absences exceeds the expected number within a particular time frame.’

So there are some disabilities – and I think CFS, depression and fibromyalgia fall into the category – for which there are other ways for employers besides saying ‘You must get a note’ every time.

When you think about it in context, Mr. Keays worked at Honda in Alliston, and lived in a rural area an hour and a half or two hours north of Toronto. Access to doctors is just presumed in all of this. If you phone your doctor and say, ‘I’d like to come in and see you,’ and they say, ‘What’s it for, are you critically injured?’ and you say, ‘No, I need a note,’ you probably aren’t going to get an appointment today. And so you then have to take another day off to go see the doctor. And many people don’t have regular doctors.

So I can understand what the employer is doing: the employer is delegating responsibility over to the medical profession – ‘You tell me he couldn’t come in because of his depression and I’ll say ok.’

But we have to start looking at this from a societal level. Is that a good use of our medical resources, our physicians’ time? And what kind of obligation is this putting on employees – which is going to be onerous? None of that is reflected in the court’s thinking, as they were only looking at the one case.

However, with this decision employers can breathe a collective sigh of relief because if they have a plan that says get a doctor’s note for your absences that are associated with your disability and then we won’t count those absences against you – this decision says that’s okay.

Where do employers most need to improve how they handle accommodation?

Do you know what’s the number one cause of lost time from work in North America? It’s depression. With this employers do a terrible job, and that’s because they have viewed depression as an on/off switch. We’ll give you two weeks away and you’ll be fine. You’ll come back and we’ll throw you right back into the deep end.

This is going to be the most difficult thing for employers over the coming decade, because people who have depression are often not the same as they used to be. And if you give employees two weeks off and then give them the same kind of work they had before, it’s not going to workout.

They’re going to wind up going on long-term disability, and ultimately, on the Ontario Disability Support Program. Employers have this template that says, ‘We expect you to do this amount of work, this is our standard.’ They have to give different standards to employees who are depressed, and they don’t.

This reflects the difficulty that accommodation means you have to treat people differently. That’s always been a problem for employers, for unions, who like to have a methodology where everyone is treated the same way. The accommodation analysis turns that on its head.