Working Notice Inappropriate for Employees Who Cannot Work

The Ontario Superior Court recently awarded an employee on leave due to disability, damages representing the salary he would have earned had he been able to work during the working notice period set by his employer.

The Facts

The employee in McLeod v 1274458 Ontario Inc had worked as a mover for the company, driving a van and delivering furniture and appliances, for 18 years.

In 2015, the employee was injured in a car accident and placed on an unpaid leave of absence. In January 2016, the employee provided a medical certificate indicating he would be unable to return until March 15, 2015 due to knee pain and Post-Traumatic Stress Disorder.

On January 31, 2016, the company sent the employee a notice of termination, indicating that it would be shutting down on July 31, 2016, and that it considered the period between January 31, 2016 and July 31, 2016 to be working notice. It advised that if he returned to work during this period, he would be paid his regular wages.

At the end of April 2016, the employee provided a note from a different doctor indicating that he remained unable to return to work, and would remain so until further notice. The employee advised that his employment might be terminated for just cause if he did not provide more medical information. The employee provided additional information, and confirmed that he could not return in any capacity. The employee’s doctor eventually cleared him for light duties on July 27, 2016. The employee worked two three-hour shifts before the employer closed down its operations on July 31, 2016.

The Decision

The Court found that because the employee was disabled from working during the notice period, he was entitled to damages representing the salary he would have earned had he worked during that period.

The employer argued that he should have returned to work on March 15, 2016, as indicated by his original doctor’s note, and earned three and a half months of salary during the notice period. The Court found, however, that the employee provided additional medical information each time the employer requested it, and that the employer implicitly accepted it as satisfactory when it did not terminate his employment for just cause, although it continually reserved the right to do so.

The Court found that twelve months of notice was reasonable in the circumstances. It awarded the employee nine months of pay in lieu of notice for the time period between when he received notice of his termination on January 31, 2016, until he found new employment on October 31, 2016.

The Takeaway

Employers should note that attempting to provide “working notice” to an employee who is not able to work will not be effective, and could in fact backfire. Paradoxically, the employer in this case ended up paying more money by giving the employee earlier notice of his termination than if it had waited until the company shut down, and simply terminated him at that point without any notice at all. If it had done the latter, the twelve-month notice period would have started running from the date of termination (and it turned out that the employee would have mitigated after only three months).

Despite this observation, courts in other cases have found keeping a disabled, absent employee in the dark about the impending end of his employment to be reprehensible conduct, sufficient in some instances to award aggravated and even punitive damages. As such, while it may in some circumstances be advisable to notify such employees about impending changes in the workplace, such as a closure, it is not advisable to purport to provide them with “working notice” of termination.

This case underscores the importance of seeking advice from an employment lawyer before terminating employees, especially those who are on leave from the workplace.

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