HR Professional - October/November 2008 - (Page 33)

ASSESSING KEAYS VS. HONDA CANADA INC. The Supreme Court of Canada’s June decision in Keays vs. Honda Canada Inc. had employers breathing a collective sigh of relief after the court set aside a $100,000 punitive damage award against Honda Canada, finding there was no evidence the automaker had discriminated against Keays. The decision brings an end to a long battle that had been closely monitored by HR professionals and employment experts across the country. The case has been before the courts since 2005, when the Ontario Superior Court of Justice found that Honda Canada had wrongfully dismissed Kevin Keays and breached his human rights by discriminating against him on the basis of a disability—chronic fatigue syndrome. The court awarded Keays two years’ pay in lieu of notice, including a “Wallace bump” due to the bad faith exhibited by Honda Canada, plus $500,000 in punitive damages against the employer—a record in a Canadian employment law case. The punitive damages award was reduced to $100,000 on appeal but the vast remainder of the lower court’s decision was upheld until it was ultimately set aside by the Supreme Court in June. But does the decision represent a judicial sea change in favour of employers? “To some degree the Supreme Court decision in Honda has neutralized Wallace, but it hasn’t wiped it out,” says Michael Sherrard, an employment lawyer and partner with Sherrard Kuzz LLP. “What it says is, ‘Here are the boxes into which evidence must fit in.’ I think it’s a well-written decision that answers a lot of questions that have arisen since the first cases following Wallace.” In favour of employers, the decision should dissuade employees from alleging human rights violations to support large damage claims, which will, hopefully, stop the trend of sky-rocketing damages awards in employment law cases. However, the ultimate lesson to be learned from Keays is not that employers should forgo proactively managing disability cases (including using doctor’s notes as an attendance management tool), but that they always act fairly in its dealings with employees. Employers must always consider how outsiders—like the courts or tribunals—view its treatment of employees. appropriate than in cases of dismissal. Avoiding a costly court case or even reducing the ultimate cost of a legal fight means taking a respectful approach to termination, accompanied by due diligence and the help of a good employment lawyer. Two cases handled by Thomlinson’s firm exemplify this. In one, a company had a bad theft problem and strongly suspected relied upon to support their decision of termination. “The evidence was not perfect,” says Thomlinson, “but, when added to their own circumstantial evidence, it certainly went a long way towards convincing a court that this employer did not act hastily and took all reasonable steps before making a decision to conclude the employment relationship with this individual.” er had a chance to terminate the relationship, the employee had an accident (outside of work) and went on disability leave. T h i s new w r i n k le st o pp e d the employer in its tracks since terminating the employee might be perceived as a response to the disability leave, prompting an allegation of discrimination. A further possibility was that, not know- 80 1993 19941997 1992 1985 1990 1995 2000 Queen vs. Cognos (1993) A potential alternative to wrongful dismissal is established: an employer’s misstatement induced an employee to accept a job, resulting in a claim for damages based on negligent misrepresentation. 2005 2008 2010 Evans vs. Teamsters (2008) A dismissed employee’s unreasonable failure to accept a recall back to work in the same or comparable position will result in a denial of the employee’s claim. Francis vs. CIBC (1994) A new contract imposed on an employee in the course of an existing employment relationship will be ineffective to reduce an employee’s pre-existing rights to notice. Farber vs. Royal Trust (1997) Supreme Court of Canada officially endorsed principle of constructive dismissal. an employee—who happened to be pregnant. Given her condition, the company was very reluctant to terminate her. So, they retained an investigation firm to assist them in obtaining further evidence of theft against the woman, which they later Terminating people with disabilities can also be tricky. Thomlinson remembers a case in which a company was preparing to fire an unsatisfactory employee coming to the end of her probationary period. Unfortunately, before the employ- ing the full extent of the employee’s injuries, the termination might worsen her condition, resulting in additional legal liability. Ultimately, the termination was delayed to allow the employee to exhaust her disability benefits and provide the w w w.H RThought L eader. c om O c t o b e r / N o v e m b e r 2 0 0 8 33 http://www.HRThoughtLeader.com

Table of Contents Feed for the Digital Edition of HR Professional - October/November 2008

HR Professional - October/November 2008 Contents Editor's Letter Contributors Leadership Matters Upfront Legal Compensation Human Capital Talent Management Murphy’s Law Wise Counsel On Message HR 101 Interview with Joseph McCool Off the Shelf The Last Word

HR Professional - October/November 2008

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