Medical Leave Was Not Working Notice: Our Team Wins 9 Months’ Pay

Samfiru Tumarkin LLP won nine months’ salary plus compensation for benefits for an Ontario mover whose employer tried to count unpaid medical leave as working notice.

Keith McLeod had delivered furniture and appliances for Frontier Sales in Scarborough since 1998. After a car accident left him unable to work, the company announced it was closing. It told him the six months before the shutdown would count as notice of termination, even though he was still too unwell to do his job.

Our employment lawyer Stan Fainzilberg represented McLeod and challenged that approach. The court agreed with our client, and the result was later upheld on appeal.

The Employer Tried to Count Unpaid Leave as Notice

Working notice normally means an employee keeps working and receiving wages until a future termination date. McLeod could not do that while he was medically unable to work.

The employer argued that he should have returned earlier, including for part-time customer service work. It also suggested he had switched doctors to find someone who would support his absence. The court found no evidence to support that accusation.

McLeod continued providing medical information when asked. Although the company threatened dismissal for cause if he did not provide sufficient information, it never followed through and continued to accept his medical leave.

How Our Team Won

The court rejected the employer’s attempt to treat the leave as working notice. McLeod was unable to work when the notice arrived, and he remained on an accepted medical leave until his limited return in July.

He was allowed to rely on his doctors’ advice. The judge also found that he could not reasonably be expected to conduct a serious job search while he was unable to tell a prospective employer when he could start or what work he could perform.

The employer pointed to online job listings to argue that he could have found work sooner. That did not persuade the court. McLeod found comparable work within three months of the business closing.

Why the Award Covered Nine Months

The judge assessed McLeod’s notice period at 12 months, taking into account his age, long service and job prospects. However, he started a comparable job nine months after receiving the termination notice.

As a result, the compensation calculation covered January 31 to October 31, 2016, with credits for money he had already received.

Read McLeod v. 1274458 Ontario Inc., 2017 ONSC 4073. The appeal is reported as 2018 ONSC 1866.

What This Means For You

• Medical leave does not erase your severance rights. Do not assume time away from work counts as working notice simply because your employer says it does.
• Keep your medical information current. McLeod’s doctors’ letters and assessment of his abilities helped support his case.
• A business closure does not automatically end its obligation to pay you. You may still be owed substantial severance pay in Ontario.

A Lesson For Employers

Before relying on working notice, consider whether the employee can actually work and earn wages during that period. An accepted medical leave can’t simply be treated as months of paid work.

Another Ontario client win: Our team also secured pay for the rest of a one-year contract after an employee was dismissed when she returned from an approved leave.

On Medical Leave and Losing Your Job?

You could be owed much more than your employer has offered. Severance can be as much as 24 months’ pay.

Our Ontario employment lawyers, including our Toronto team, can review your termination letter and explain how your medical leave affects your severance. Before you sign, always check first.