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Working notice not appropriate for employees on medical leave

Ontario Superior Court of Justice confirms rules
Employment law
The Ontario Superior Court of Justice confirmed, in Keith McLeod v. 1274458 Ontario Inc., that working notice does not apply where an employee is on a medical leave of absence. Shutterstock

By Stuart Rudner and Anique Dublin 

When terminating an employee without cause, an employer has the discretion to require that the employee work until her termination date, but what happens if the employee is unable to work due to medical reasons?

Recently, the Ontario Superior Court of Justice confirmed, in Keith McLeod v. 1274458 Ontario Inc., that working notice does not apply where an employee is on a medical leave of absence.

Operating at Frontier Sales as a mover for 18 years. In September 2015, he was involved in a non-work-related car accident. He was consequently unable to work and was placed on an unpaid leave of absence.

In January 2016, while still on his leave of absence, McLeod was advised that Frontier would be ceasing operations on July 31, 2016, at which time his employment would be terminated. The following six months were to serve as his working notice period. On July 27, 2016, McLeod returned to work on light duties.

On termination, McLeod commenced an action for wrongful dismissal.

The court held that McLeod was incapable of working when he received the notice of termination. He was therefore “entitled to damages representing the salary he would have earned had he worked during the notice period. The fact that he was unable to work was irrelevant to the assessment of these damages.”

The court stated that the real issue was whether McLeod was incapable of returning to work to earn a salary as part of the working notice period.

Frontier argued that McLeod was seeking a “windfall” and could have returned to work earlier, which would have reduced his damages claim. It also argued that the court should draw an adverse inference from McLeod's failure to provide the court with an affidavit from his doctor confirming that he was unable to work.

The court held that Frontier’s argument was “misguided” because it ignored the fact that McLeod received notice of termination while on a medically supported leave of absence and at no time did his status change. Each time McLeod was asked by Frontier for medical information confirming he was unable to work, he provided it and each time Frontier accepted it.

The court held that if Frontier had rejected the information received from McLeod’s doctor and terminated him for cause, then the issue of whether he was actually capable of returning to work would be relevant. If Frontier had suspicions about the validity of McLeod’s doctor’s notes, the issue should have been addressed immediately and not after a claim had been filed.

The court held that working notice was therefore not appropriate in this case. He was entitled to pay in lieu of notice.

In determining the length of the notice period, the court considered a number of factors including, but not limited to, McLeod’s 18 years of employment, his age (43 years old), his position as a mover, and the fact he had no special training or qualifications. The court also considered the current job market and recognized that it is more difficult for individuals without skills and specialities to find employment.

As a result, the court determined the appropriate notice period to be 12 months. This was reduced to nine months as McLeod was able to find comparable employment within three months of his termination.

The court held that McLeod’s decision not to return to work until July 27, 2016, was reasonable as he was relying on the advice of his doctor and Frontier did not disagree with the doctor’s advice. The court held that “until he was able to return to work, [McLeod] could not be expected to undertake a serious job search”, as a potential employer would not be prepared to hire someone if they did not know when they could actually start work and what they would be able to do.  

The court held that McLeod’s mitigation efforts only needed to be reasonable and, the fact that he was able to find new employment within three months of his termination, shows that his mitigation efforts were reasonable.     

Working notice can be appropriate and advisable in some circumstances. However, it may not be appropriate in cases where the employee is on a medical leave of absence that has been approved by the employer. Employers should always seek advice prior to dismissing an employee, particularly when the employee is on a medical leave. Conversely, employees should never simply “accept” a dismissal offer, as they have more substantial rights.

Anique Dublin  is a law clerk and office administrator at Rudner Law in Toronto.

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Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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