When an employee is terminated, instead of providing pay in lieu of notice, the employer may ask the employee to continue working during the notice period. This is known as “working notice”. In general, an employee is legally obligated to comply with their employer’s request to continue working. However, a recent decision by the Ontario Superior Court confirms that there are certain exceptions to this rule. In McLeod v. 1274458 Ontario Inc, the Court ruled that employers can not give working notice to employees who are incapable of working.

The Case:

The employee, Keith McLeod, was employed as a mover at Frontier Sales. On September 18, 2015, Mr. McLeod was involved in a non-work-related car accident that rendered him unable to return to work. Following this accident, he was placed on an unpaid leave of absence. On January 29 2016, Mr. McLeod’s physician provided his employer with a medical certificate that confirmed he was experiencing both physical pain and post-traumatic stress disorder as a result of the accident. On January 31, 2016, while Mr. McLeod was still on his leave of absence, he was sent a notice of termination. He was also informed that the company would be shutting down on July 31, 2016, and that the period between the notification and the closing date would constitute his working notice. In mid-April 2016, Mr. McLeod provided a new medical letter to his employer which again confirmed that he was unable to return to work. Although his employer was not satisfied with the letter and threatened to terminate him for just cause if he did not provide additional information, they ultimately took no action against him.

The Decision:  

In his decision, Justice Kenneth Hood ruled that employers can not give working notice to employees who are incapable of working.

The Court rejected the employer’s argument that Mr. McLeod shopped around for a medical opinion to support his inability to return to work. Given that the employer never terminated Mr. McLeod for just cause, the employer was deemed to have implicitly accepted the adequacy of the medical certificate.

The Court also awarded Mr. McLeod damages consisting of the salary he would have earned had he worked during the notice period. Citing the Supreme Court decision in Sylvester v British Columbia, [1997] 2 SCR 315, the Court ruled that Mr. McLeod’s physical inability to work during the notice period was irrelevant.

In addition, the Court ruled that Mr. McLeod could not be expected to undertake serious job searches to mitigate his damages until he was able to return to work.

Lessons for employees:  While on medical leave make sure you provide your employer with a medical note confirming that you are sick and provide updated medical notes when appropriate.

After being terminated, if your illness continues to prevent you from working, continue to see your doctor so you can prove you are still unable to work.

If you are off work with a disability and have been given working notice, you should speak to an employment and human rights lawyer. You may reach us at MacLeod Law Firm at [email protected] or 647-204-8107.