Working Notice During Medical Leave: Ontario Client Win

Samfiru Tumarkin LLP secured nine months’ severance pay and benefits for an Ontario employee after his employer tried to count time spent on medical leave as working notice.

The employer appealed the decision, but the appeal was dismissed. Our client was also awarded $12,500 to help cover his legal costs for the appeal.

The case confirms an important rule: working notice may not count when an employee is medically unable to work.

What Happened?

• Keith McLeod had worked as a driver and mover for Frontier Sales in Scarborough for approximately 17 years.
• In September 2015, he was injured in a non-work-related car accident.
• His doctors confirmed that physical pain and post-traumatic stress disorder prevented him from returning to work.
• He was placed on an unpaid medical leave.
• In January 2016, Frontier Sales announced that the business would permanently close on July 31, 2016.
• The employer treated the six months before the closure as working notice.
• However, Mr. McLeod was medically unable to work during almost all of that period.

The Employer Challenged His Medical Leave

Mr. McLeod provided medical documentation confirming that he remained unable to work.

The employer claimed that he had searched for a doctor who would support his continued absence. The court found that there was no evidence to support that accusation.

The employer had accepted Mr. McLeod’s medical leave and did not properly challenge his medical information at the time.

The court found that he was entitled to rely on the advice of his doctors.

Ontario employers can request information about an employee’s restrictions and ability to work. However, there are limits on the medical information they can demand as part of an employer’s duty to accommodate an employee in Ontario.

Why The Working Notice Did Not Count

Working notice normally requires an employee to continue working and earning their regular wages until their employment ends.

Mr. McLeod could not do that because of his medical condition.

The employer argued that because he was unable to work, he had not lost income and should not receive additional compensation.

The court rejected that argument.

It found that Mr. McLeod was still entitled to the pay and benefits he would have received if his employment had been ended properly.

The Result: Nine Months’ Severance Pay

The court determined that Mr. McLeod should have received compensation equal to 12 months of employment.

He found a comparable job nine months after receiving notice that Frontier Sales would close.

Samfiru Tumarkin LLP secured:

• Nine months’ salary
• The value of his employment benefits
• A successful defence of the result when the employer appealed

The Ontario Divisional Court dismissed the employer’s appeal and upheld the result.

What This Case Means For Employees

An employer can’t simply call a period “working notice” when an employee is medically unable to perform their job.

Employees on medical leave may still be owed significant severance pay when their employment ends.

The amount an employee may receive can depend on factors such as:

• Length of service
• Age
• Position
• Availability of similar employment
• Employment contract
• Medical condition and ability to work

Employees should also keep their medical documentation current and follow the advice of their treating doctors.

Can An Employer Fire You While You Are On Medical Leave?

An employer may sometimes end an employee’s employment while they are on medical leave, including when a business permanently closes.

However, the employer must still provide proper severance pay. Failing to provide the full amount an employee is owed could result in a wrongful dismissal claim in Ontario.

An employer also cannot punish or fire an employee because of a disability or legitimate medical absence. Doing so could lead to additional claims under employment and human rights laws.

Terminated While On Medical Leave?

Do not assume that your employer has correctly calculated your severance pay.

You may be owed more if:

• Your employer counted medical leave as working notice
• You could not work during the notice period
• Your benefits were cut off
• Your severance offer is too low
• Your medical condition played a role in the termination

Use our free Ontario Severance Pay Calculator to get a general idea of what you may be owed. Do not sign a severance offer or release before getting legal advice.

Samfiru Tumarkin LLP represented the employee in McLeod v. 1274458 Ontario Inc., secured nine months’ severance pay and benefits, and successfully defended the result on appeal.

Contact an Ontario employment lawyer at Samfiru Tumarkin LLP at 1-855-821-5900 or complete our online contact form to find out how much severance pay you may be owed.