Generally speaking, if an employee is terminated without just cause they are entitled to receive “reasonable notice” of termination unless they have agreed to accept a specific amount of notice of termination. An employer can provide working notice or termination pay in lieu of this notice.
What happens when an employer provides working notice of termination and the employee cannot work due to medical factors? A recent decision from the Ontario Superior Court of Justice confirmed the principle that for disabled employees, working notice does not generally start until after the employee is medically able to work.
McLeod v 1274458 Ontario Inc. – The Facts
Keith McLeod had been employed as a mover at 1274458 Ontario Inc. (Frontier Sales) for almost 20 years. On September 18, 2015, Mr. McLeod was involved in a non-work-related car accident. As he was unable to return to work, he was placed on an unpaid medical leave of absence. His physician provided a medical certificate supporting the fact that Mr. McLeod was experiencing both physical pain and PTSD as a result of the accident.
On January 31, 2016, shortly after Mr. McLeod had provided Frontier Sales with his doctor’s prognosis, he was sent a notice that his employment would be terminated effective July 31, 2016 as the retail business was shutting down. According to the company, the period between notification and the store’s closing date would be considered working notice.
Mr. McLeod provided a letter from his new doctor which corroborated his previous physician’s opinion. Frontier Sales believed the doctor’s letter was inadequate, and warned that they would terminate Mr. McLeod for just cause if more information was not provided by April 22, 2016. Frontier Sales took no action after April 22, 2016.
After his doctor cleared him for light duties on a part-time basis, Mr. McLeod returned to his job on July 27, 2016. On July 31, 2016, Frontier Sales shut down as planned.
At trial, Frontier Sales argued that since Mr. McLeod was not capable of working between January and July 2016, he was not owed anything in damages for reasonable notice. The court rejected this argument. A previous decision from the Supreme Court of Canada found that the fact that an employee cannot work is irrelevant to the assessment of wrongful dismissal damages. Relying on this decision, the Ontario Superior Court of Justice awarded Mr. McLeod 9 months’ pay in lieu of notice (i.e. from January to October 2016, when he began his new job).
If you have been terminated while on a medical leave, it is important to consult an employment lawyer, whether or not you are provided some kind of notice from the employer. In addition to notice, you may be entitled to other kinds of damages, such as general damages for a violation of the Ontario Human Rights Code, or aggravated damages to compensate for the employer’s bad faith for terminating an employee during a medical leave.
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