Supervisors report that discharging an employee is one of the toughest tasks they perform as managers. Termination for absenteeism can be particularly difficult because if the absenteeism is related to a disability, the employer will need to consider not only the rules governing dismissal with notice and with cause but also requirements in human rights legislation. Mr. Keays was hired in 1986 by Honda as an assembly-line worker. In 1997, he was diagnosed 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 the 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 medical letters for every absence and 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 the 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 for the employer’s egregious conduct. 

Questions 

1. Do you think the employer should be entitled to dismiss Mr. Keays without giving him reasonable notice? 

2. Does an employer have a right to insist that employees submit to medical examinations by doctors chosen by the employer? 

3. If the doctors inform the employer that Mr. Keays’s absences are due to his chronic fatigue syndrome and that they are likely to continue in the future, should the employer be entitled to dismiss Mr. Keays? 

4. If Mr. Keays wins his wrongful dismissal case, will the court order Honda to reinstate him to his previous employment? Should it do that?