A recent decision by the Superior Court of Ontario has confirmed that working notice doesn’t count when an employee is away from work due to medical factors.

The case, McLeod v. 1274458 Ontario Inc., dealt with Keith McLeod, who had worked as a mover at Frontier Sales in Scarborough, Ont., since 1998. In September 2015, he went on an unpaid leave of absence following a non-work-related car accident that rendered him unable to immediately return to work. In January 2016, McLeod’s treating physician provided a medical certificate that confirmed he was experiencing both physical pain and post-traumatic stress disorder as a result of the accident.

Read: The challenges of terminating benefits for employees on disability

On Jan. 31, 2016, days after McLeod had provided Frontier Sales with his doctor’s prognosis, he received a notice advising him the business was shutting down as of July, 31, 2016, and that his employment would end on the same date. The company noted the period between notification and the store’s closing date would count as working notice, despite the fact McLeod was unable to return to work.

“They let everyone know, from essentially January to the end of July, that’s working notice and that counts towards their entitlements. And that’s where the issue and crux of this entire case stems from, the question being whether an employer can give working notice to a person that’s disabled,” says Stan Fainzilberg, an associate at Samfiru Tumarkin LLP and counsel for the plaintiff.

In April, McLeod spoke to one of the principals at Frontier Sales, who requested further medical documentation to support the medical leave of absence. The same month, McLeod had switched to a new doctor, who confirmed he was unable to work until further notice.

In making its case, Frontier Sales argued McLeod had shopped around to find a doctor who would support his alleged desire to remain off work, but the court found there was no evidence to support that claim. At the same time, the company felt the new doctor’s letter was inadequate and warned it would terminate McLeod for just cause if he didn’t provide more information by April 22, 2016. The date came and went without terminating the plaintiff.

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“With each letter, they’re putting pressure on my client to come back; they say there’s customer service work,” says Fainzilberg. “On top of the physical disabilities, he’s suffering from depression, he’s on a lot of antidepressants. His doctor says, ‘He can’t do customer service work. That’s a terrible idea.’ And in each letter, it says, ‘If you don’t come back, we reserve the right to terminate you for cause.’ They continue to do this but they never actually pull the trigger.”

On July 21, 2016, the new doctor met with McLeod and said he could return to work on a modified schedule, notes Fainzilberg. Frontier Sales accepted the recommendation, and McLeod returned to work on July 27 and July 29 for three-hour shifts. However, on July 31, the company closed down its operations, and McLeod received termination pay of eight weeks.

In the judge’s view, the real issue was whether McLeod was incapable of returning to work so as to earn a salary as part of the working notice period between January and July 2016 and whether Frontier Sales owed pay in lieu of notice during that time. The company argued it didn’t owe McLeod anything additional because there was no affidavit from a doctor confirming he was unable to work.

But in his decision, Justice Kenneth Hood noted McLeod remained on medical leave until his return to work on July 27 and found the medical information provided to Frontier Sales must have satisfied the company because it chose not to terminate him for cause.

“In all of its letters to the plaintiff, the defendant said that it might terminate the plaintiff,” wrote Hood. “It reserved the right to do so. It never did. If the defendant had pulled the trigger and terminated the plaintiff for cause, then perhaps on a motion of summary judgment the issue of whether the plaintiff was actually incapable of working would have been in play.”

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Hood awarded McLeod damages for nine months of base salary between Jan. 31, 2016, when he received his notice of termination, and Oct. 31, 2016, when he started a new job in a comparable position, less the amount paid by Frontier Sales pursuant to its obligation under the Employment Standards Act.

Fainzilberg calculates the company owes his client $25,594.53. “We are actually still debating what damages he is owed and will likely have to write submissions to the court so that a decision can be rendered on this point,” he says.

The case confirms the importance of medical expertise, he adds. “All Keith really knew throughout this period was that he was in pain and he didn’t think he could work, but his opinion doesn’t matter; at the end of the day, only a medical doctor’s opinion mattered here.”

Read: Change to doctor’s notes signals new philosophy towards absence

Copyright © 2022 Transcontinental Media G.P. Originally published on benefitscanada.com

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