Employee's time on medical leave doesn't count towards working notice
A recent Ontario court decision has confirmed the principle that working notice does not count when an employee is not at work due to medical factors. More importantly, McLeod v. 1274458 Ontario Inc. serves and an important reminder that an employee has the right to rely upon her physician's advice, even when her employer disputes the medical opinion that is provided.
Keith McLeod had been employed as a mover at Frontier Sales in Scarborough for just under 20 years, operating a delivery van for the residential furniture and appliance company.
On Sept. 18, 2015, McLeod was involved in a non-work-related car accident, which rendered him unable to return to work. Without objection from his employer, he was placed on an unpaid medical leave of absence. In late January of 2016, McLeod’s treating physician confirmed that he was experiencing both physical pain and PTSD as a result of the accident, and provided a medical certificate acknowledging that fact.
On Jan. 31, 2016, just days after McLeod had provided Frontier Sales with his doctor’s prognosis, he was sent a notice advising him that the retail business was shutting down as of July 31, 2016, and that his employment would be terminated on that same date. The company also noted that the period between notification and the store’s closing date would be considered working notice, despite the fact that McLeod was unable to return to work.
In mid-April 2016, McLeod acquired a new doctor that provided a letter which corroborated the previous physician’s opinion. Frontier Sales argued that the employee had "shopped around" to find a doctor who would support McLeod’s alleged desire to remain off work, despite the fact that there was no evidence to support this theory. The company felt the doctor’s letter was inadequate, and warned that they would terminate McLeod for just cause if more information was not provided by April 22, 2016. The deadline came and went, Frontier Sales took no action.
It wasn’t until July 27, 2016, that McLeod was back on the job, having been cleared by his doctor for light duties on a part-time basis. On July 31, Frontier Sales closed its doors permanently.
Trial: Medical leave and working notice
At trial, the main issues were whether McLeod could have returned to work between January and July 2016, and whether Frontier Sales owed pay in lieu of notice during this period.
The employer argued that since McLeod was not capable of working during this period, he had no damages and was not owed anything. This argument was conclusively rejected by the court, relying upon a previous Supreme Court decision (Sylvester v. British Columbia) where it was explicitly found that the fact that an employee could not work was irrelevant to the assessment of damages. Damages are based on the premise that the employee would have worked during the notice period. Therefore, an employee who is wrongfully dismissed either while working or while receiving disability benefits is entitled to damages consisting of the salary they would have earned while working during the working notice period.
The employer also argued that the McLeod had shopped around for a doctor who would support his absence and had failed to return to work when repeatedly told to do so. After reviewing the medical evidence, the court thoroughly rejected this argument as well, noting that McLeod had received advice from a doctor. The doctor indicated that he could no return to work, and Frontier Sales chose not to challenge the medical evidence at the relevant time, leaving McLeod to rely upon his doctor’s advice.
Ultimately, Justice Kenneth Hood awarded McLeod nine months’ compensation, or pay in lieu from January until Oct. 31, 2016, when he started his new job in a comparable position.
Lessons learned for employees
- Proper medical documentation. This case further highlights the importance of proper medical documentation and, if the medical evidence supports the conclusion that the employee is medically incapable of working, the ability to rely upon their doctor’s advice. Notwithstanding the employer’s belief that the plaintiff could have returned to work, the medical evidence did not support this position and an employee is allowed to follow their doctor’s advice.
Lessons learned for employers
- Seek out legal counsel before termination! This decision is a reminder of the pitfalls for an employer failing to seek out counsel before choosing to terminate an employee. Had they waited until July 31, 2016, to notify McLeod of his termination, Frontier Sales would have only had to pay the employee three months’ of pay in lieu of notice, as opposed to the nine months McLeod received. However, by not seeking legal advice and trying to get away with giving a disabled individual “working notice” during a period that he was not medically capable of working, the employer had to pay an additional six months, notwithstanding the fact that McLeod could not medically work during this period.
- Working notice does not count when an employee is not at work.
- Don’t jump to conclusions. Far too often, employers unreasonably conclude that employees simply have a doctor who is supporting their absence when they are not really medically unable to work. As the court indicated in McLeod, however, an employer cannot make such bald assertions, without any evidence to back it up, simply because it is its belief. It must be remembered that people, and courts, trust that doctors will give honest assessments of an individual’s injuries and are entitled to deference. An employer simply wishing for something different will not change this undeniable fact.
For more information see:
- McLeod v. 1274458 Ontario Inc., 2017 ONSC 4073 (Ont. S.C.J.).
Stan Fainzilberg is an Associate with Samfiru Tumarkin LLP in Toronto, practicing in the areas of Employment, Labour, and Human Rights law. He can be reached at (416) 361-0993 or [email protected]. He represented the plaintiff in the above case.
