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Judge rules on working notice period

|Written By Alex Robinson

An Ontario judge has ruled that a working notice period does not apply to an employee who is on disability leave.

Stan Fainzilberg says the decision is a reminder that employees can rely on their doctor’s advice even when disputed by an employer.

In McLeod v. 1274458 Ontario, Justice Kenneth Hood of the Ontario Superior Court ordered a delivery company to pay damages for a working notice period to a long-term employee unable to work during that time because of injuries sustained in a non-work-related car accident.

The damages represented the salary he would have earned had he worked during the notice period.

Lawyers say the decision confirms that employers cannot give working notice to employees incapable of working.

“The whole point is to give that person a cushion in terms of money and time so that it can soften the blow of the transition between jobs,” says Stan Fainzilberg, a lawyer with Samfiru Tumarkin LLP, who represented the employee.

“And he wasn’t given that opportunity because they weren’t going to pay him during that time.”

The employee, Keith McLeod, obtained a certificate from his doctor in January 2016 that said he was unable to return to work until March of that year. He later provided a letter from a second doctor that he was still suffering from pain and could not return until further notice.

At the end of January 2016, the employer issued him a notice of termination, as the company decided to shut down operations entirely at the end of July 2016.

McLeod returned to work for two shifts in July before the business closed.

He then got a new job at Purolator for a comparable salary at the end of October 2016.  

At issue in the dispute was whether the plaintiff was incapable of returning to work during the notice period.

The defendants claimed that the plaintiff had shopped around to find a doctor who would write letters in support of his claim that he was unable to work, but the judge found there was no evidence of this.

The employer argued that the plaintiff was not entitled to damages as he was able to return to work but refused and had failed to apply for another job. The employer also said that a mini-trial should be used because of inconsistencies in McLeod’s evidence, but Hood disagreed, granting the plaintiff’s summary judgment motion.

Hood awarded McLeod nine months base salary, minus the pay for shifts he worked in July and an amount paid by the employer to its obligations under the Employment Standards Act.

Landon Young, a partner with Stringer LLP, who was not involved in the case, says the employer should have simply terminated the employee without working notice. Then it would have owed him only three months worth of pay in damages, as notice would have started on the day he was terminated and lasted until he found a new job, he says.

“The employer got burned because they gave this employee working notice while he was on his disability leave,” Young says.

Fainzilberg says the decision also serves as a reminder that employees can rely on a doctor’s advice even when the employer disputes it.

“What this decision shows is you are allowed to listen to a doctor,” he says.

“At the end of the day, a layperson such as my client doesn’t know if he can go back or not. That’s for a doctor with a medical degree to decide.”

The employer had also argued that the employee had failed to mitigate, saying there were thousands of similar job opportunities available as disclosed on an online job search engine.

But Hood found that McLeod could not be expected to undertake a serious job search until he was able to return to work.

“The plaintiff’s mitigation efforts need only be reasonable,” he said.

“The bar is not set too high. The onus to show that the plaintiff failed to properly mitigate lies with the defendant.”  

Dorian Persaud, the lawyer representing the employer, said the decision sets an extremely low bar for mitigation. He added that it undermines the basis of awarding damages in a wrongful dismissal case and encourages employees to sit on their damages.

He said that what makes the decision problematic is the fact that the plaintiff submitted medical information from his own family doctor indicating he was able to return to modified duties.

“If an employer cannot rely on the medical opinion of an employee’s physician, then employers are handicapped when it comes to making good faith efforts to accommodate a disabled employee,” he said in an email.

“At a minimum, employees should be required to attend work and attempt the modified duties offered if those duties are consistent with the physician’s assessment of the employee’s limitations.”

Persaud added that the judge erred by mistakenly putting weight on the fact that the employer did not terminate the employee after he refused to attend work.

“The fact that an employer is generous with an employee is not a basis to infer acceptance of the employee’s misconduct,” he said.

Persaud said he is still waiting for instructions from his client on whether he will seek leave to appeal the decision.

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