Working notice no good when employee can’t work

Employee was on medical leave when given letter of termination; entitled to compensation as if he was working for reasonable notice period
By Jeffrey R. Smith
|Canadian Employment Law Today|Last Updated: 01/11/2018

An Ontario worker who was on medical leave when he received working notice of termination is entitled to pay in lieu of notice for his reasonable notice period, the Ontario Superior Court of Justice has ruled.

Keith McLeod, 44, was hired in 1998 by a furniture and appliance store in Scarborough, Ont., to be a mover. His job involved driving a van and delivering furniture to the store’s customers.

McLeod was in a car accident that was unrelated to his work on Sept. 18, 2015, in which he was injured. As a result of his injury, he needed some time off to recover. The store placed him on an unpaid leave of absence and on Jan. 29, 2016, McLeod provided a medical certificate from his doctor saying he would be off work until March 15 due to knee pain and post-traumatic stress disorder (PTSD) stemming from the accident.

Two days later, on Jan. 31, the store sent McLeod a notice of termination. The notice stated that the store would be shutting down operations on July 31 and his employment would be terminated on that date. The six months between then and the date of the shutdown would be considered working notice, and “if you are physically able to return to your position as mover before the termination date, you will continue to receive your regular wages,” the store said in the notice, which didn’t reference any return date for McLeod.

Return-to-work date moved

On March 15, the day McLeod’s original medical certificate indicated as a likely return-to-work date, McLeod saw his doctor complaining of low back pain that hadn’t improved. McLeod informed the store he couldn’t yet return to work and the store requested further documentation to support his medical leave of absence.

In the meantime, McLeod changed doctors and provided a letter from his new doctor in mid-April stating he was unable to work until further notice.

The letter invited the store to contact the doctor directly with any questions, but the store instead asked McLeod for more medical information as it felt the letter wasn’t sufficient. The store said if more information wasn’t provided by April 22, it reserved the right to terminate McLeod’s employment.

The store’s deadline passed and McLeod wasn’t terminated, but his new doctor provided him with a brief letter to give to the store that stated McLeod was still unable to return to work. The store responded by suggesting McLeod return to work on a part-time basis in customer service. However, McLeod indicated he was unable to work in any capacity.

At the end of May, McLeod was still an employee of the store. The store requested his doctor fill out a functional abilities questionnaire for him, which the doctor did along with a letter saying McLeod was still unable to work in any capacity due to back and knee pain along with mental health issues. In addition, he informed the store that McLeod had a follow-up appointment on July 21. The store didn’t take any action.

After the July 21 appointment, McLeod’s doctor cleared him for light duties on a part-time basis. The store accepted the recommendation and assigned McLeod three-hour shifts of light duties on July 27 and July 29. McLeod worked the two assigned shifts before the store closed down on July 31.

McLeod filed a complaint for wrongful dismissal due to lack of reasonable notice. He remained unemployed for three months following the shutdown, finding similar employment with similar pay at the end of October.

The store argued that McLeod should have returned to work on his original expected date of March 15, 2016, so he could have earned three-and-one-half months of working notice. Combined with the two months required by the Ontario Employment Standards Act, this would have minimized his damages to almost nothing, said the store.

The court noted that McLeod was entitled to reasonable notice of termination. Though the store indicated it was providing six months’ working notice, at the time McLeod was not capable of working. As a result, he was entitled to damages equal to the salary he would have earned had he worked during the notice period.

The court found that McLeod was on an agreed medical leave of absence when he received the termination notice and this didn’t change. He provided medical information on his status and updated the store when his return-to-work date changed. In addition, the court noted that when McLeod provided the requested additional information, the store didn’t follow through on its threat to terminate him, so the information must have satisfied store management, said the court.

As a result, there store contradicted itself when it argued McLeod should have returned to work on March 15, as it had accepted the updated medical information that changed his return date to July, said the court.

The court considered McLeod’s age (43 at termination), his lack of special training or qualifications, and his 18 years of service,  determining he was entitled to 12 months’ notice of termination. It also noted that McLeod returned to work in late July — even though the store was about to close down — because he was following his medical advice. Until he was able to return to work, he couldn’t be expected to look for new employment, and once he did, he found work within three months — reasonable efforts to mitigate his damages, said the court.

The court ordered the store to pay McLeod an amount equal to nine months’ pay from his notice of termination on Jan. 31, 2016, to when he started new employment at the end of October 2016 — an amount McLeod calculated in his claim to be $27,036.

For more information see:

McLeod v. 1274458 Ontario Inc., 2017 CarswellOnt 11983 (Ont. S.C.J.).

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