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CCCA_V3No1_Decisions-FIN.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 1/21/09 3:04 PM Page 33 Rewiring Feature the workplace By Ann Macaulay specialist to find out how to accommodate his disability. bad faith justifying an award of damages for conduct in dismissal… On his lawyer’s advice,the employee declined to meet with the “Similarly, punitive damages should not have been awarded. doctor without an explanation of the purpose, methodology and Punitive damages are restricted to advertent wrongful acts that are parameters of the consultation. He then received a letter from his so malicious and outrageous that they are deserving of punishment employer stating that his employment would be terminated if he on their own.The facts of this case demonstrate no such conduct. refused to meet with the doctor.When he continued to refuse,his Courts should only resort to punitive damages in exceptional cases, employment was terminated and he sued for wrongful dismissal. and the employer’s conduct here was not sufficiently egregious or The trial judge in Honda v. Keays awarded a 15-month notice outrageous to warrant such damages.” period and, finding that the employer had committed acts of dis- Wilson says the decision is positive from a corporate counsel crimination, harassment and misconduct against the employee, point of view, because it touches on absenteeism, a never-ending increased the notice period to 24 months to award additional problem in business.“Corporate counsel should read that part of the damages.Punitive damages of $500,000,a costs premium and costs decision very carefully,because it’s got some useful nuggets in there on a substantial indemnity scale were also awarded. about what the corporation can do.And it certainly gives them more The Supreme Court agreed that the employee was wrongfully comfort in regard to pressing their employees who are absent, par- ALENA GEDEONOVA dismissed and kept the 15-month notice period. But it ruled that ticularly for long periods of time, or periodically absent, that they aggravated damages should not have been awarded:“The employ- just simply don’t have to accept whatever note comes from their doctor as being a basis of the absenteeism.They can question it.” er’s conduct in dismissing K was in no way an egregious display of PRINTEMPS 2009 CCCA Canadian Corporate Counsel Association 33