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Is working notice appropriate while an employee is medically incapable of working?

This post discusses whether employees are entitled to damages if they are incapable of working during the working notice period.
working noticeIn the recent decision of McLeod v. 127448 Ontario Inc. the Court (once again) answered whether or not a Plaintiff, who was incapable of working when he received notice of termination, was entitled to damages representing a salary which he would have earned had he worked during his notice period.

The Plaintiff, Mr. McLeod, was 43-year-old male who had been working as a furniture and appliance mover for approximately 19 years. In September 2015, Mr. McLeod was involved in a car accident that left him suffering with knee pain and PTSD. He was then placed on an unpaid leave of absence. In January of 2016, the Plaintiff’s doctor provided his employer with a medical note which said that he was unable to return to work until March. Ironically later that month, on January 31st, the Plaintiff was given a notice of his termination. The Defendant advised that it was shutting down its operations on July 31st and his employment would be terminated effective July 31st, 2016.

The Defendant advised that it considered the period between January 31st, 2016 and July 31st, 2016 to be working notice.

On March 15th 2016, the Plaintiff’s doctor provided a further medical note explaining the Plaintiff’s back pain. The Defendant then twice requested further medical reports to support Mr. McLeod’s continued leave of absence. Mr. McLeod’s new doctor, Dr. Marks, wrote to the Defendant in the winter of 2016 to advise the employer that Mr. McLeod was still unable to work and asked the Defendant to contact him if they had further questions. The employer never did, but rather asked the Plaintiff for more medical information as it felt Dr. Mark’s letter was inadequate. It demanded further information to support his paid leave and advised that it reserved the right to terminate Mr. McLeod’s employment immediately for just cause if the requested information was not provided by April 22nd, 2016. Dr. Marx provided the Defendant with a brief letter on April 26th, along with his medical notes, and the Plaintiff was not terminated.

Near the end of May 2016, the employer requested that Dr. Marx complete a FCE, which he provided to the employer at the end of June 2016. The Defendant took no steps while waiting or upon receiving the letter and questionnaire. The Plaintiff was cleared for light duties on a part-time basis and returned to work on July 27th and on July 29th on reduced shifts. Two days later, on July 31st, 2016 the Defendant closed down his operations. Approximately, three months later, Mr. McLeod found a job at Purolator doing a comparable job at comparable pay.

Was the plaintiff entitled to damages that he would have received on sick leave?

The Honourable Hood J. answered affirmatively. Firstly, Justice Hood advised that the Plaintiff was entitled to damages representing the salary that he would have earned had he worked during the notice period. The fact that he could not work was irrelevant to the assessment of damages, (Sylvester v. British Columbia [1997] 2 SCR 315). The main determinant was whether the Mr. McLeod was incapable of returning to work, so he could earn a salary as part of his working notice. The Defendant argued that Mr. McLeod should have returned to work on March 15th, 2016 and further asked the court to draw an adverse inference from the failure of the Plaintiff to have an affidavit from Dr. Marx confirming that the Plaintiff was unable to work.

Justice Hood disagreed. He found that when Mr. McLeod was asked for more medical information he provided it each and every time. The Defendant seemed to be satisfied with the medical information as they chose not to terminate the Plaintiff for cause, despite reserving the right to do so.

Justice Hood indicated that the Defendant simply cannot sit back and accept the Plaintiff’s position that he was unable to work and not terminate him, then turn around and argue that he was obligated to prove his medical condition rendered him disabled, on Summary Judgment Motion

Therefore, given the medical evidence, there was nothing unreasonable in Mr. McLeod’s failure to return to work until shortly before the employer ceased operations. Given his compliance he was entitled to damages representing the salary he would have earned had he worked during the notice period. Justice Hood determined that notice period for an unskilled worker without speciality, such as Mr. McLeod, was 12 months notice.

What’s the takeaway on this case?

If an employee is disabled during the notice period, the employee is still entitled to damages even though he or she cannot work due to illness. Although many employers are fearful of terminating employees while on sick leave, termination can be justified with the payment of appropriate notice unless cause is alleged. There are of course variables, which may affect the reasons for termination such as an owner retiring, a business sale, or an employer might be looking to terminate the employee on sick leave because that employee’s performance is sub-optimal or already at risk of termination. In this case, the company was closing it’s operations. Different situations will call for different plans of action – but unless an employer is terminating for cause – the employee is still entitled to damages.

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Matt Lalande, Lalande & Company Lawyers

Hamilton Personal Injury Lawyer at Lalande & Company Lawyers
Matt Lalande is a Hamilton lawyer and founder of Lalande & Company Lawyers. Lalande & Company is a Hamilton law firm that specializes in representing victims who have suffered life changing injuries, claimants denied long term disability, families of wrongful death victims and employment law litigation. Read more
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