Few things in law are certain. Even fewer things in life are certain. In fact, it is said that only two things in life are certain: death and taxes. Allow me to submit that there is one more thing in life of which you can be certain: your mother is, was, and will be correct.
Among the myriad things about which your mother was correct is the fact that if you were too sick to go to school, then you were too sick to go out and play once your friends got home from school.
I raise this tautology, actually a repetition of an argument that I made in paper that I authored in 2010 titled Sick of Work? The Legal Minefield of Workplace Burnout, in respect of the case of McLeod v. 1274458 Ontario Inc., 2017 ONSC 4073, which held that working notice was inappropriate for an employee absent from work on medical leave.
The plaintiff employee was a long-term employee of the defendant employer, having started with the company in 1998. He was 43 years old at the time of termination.
The employer company was in the business of the sale and delivery of residential furniture and appliances from its one store in Scarborough. The employee worked as a mover for the employer, driving a van and delivering furniture to its customers.
On September 18, 2015, the employee was involved in a non-work-related car accident. He was unable to immediately return to work. He was placed on an unpaid leave of absence.
On or about January 29, 2016, the employee’s doctor provided him with a medical certificate indicating that he would be unable to return to work until March 15, 2016, due to knee pain and PTSD resulting from the accident. This certificate was then given to the employer.
On January 31, 2016, the employee, while still on his leave of absence, was sent a notice of termination. He was advised that the employer was shutting down operations on July 31, 2016, and that his employment would be terminated effective July 31, 2016.
The employer advised the employee that it considered the period between January 31, 2016 and July 31, 2016 to be “working notice”.
The notice of termination, among other things, stated: "If you are physically able to return to your position as Mover before the Termination Date, you will continue to receive your regular wages." No return date for the employee was referenced in the notice. The employer confirmed his employment position as Mover.
On March 15, 2016, the employee was again seen by his doctor. The doctor's notes state that the employee had low back pain and that his back pain had not improved.
On March 31, 2016, and April 7, 2016, the employee spoke to one of the employer's principals, who requested further medical reports or documentation to support the employee’s continued medical leave of absence.
The employee provided a letter from his new doctor, Dr. Marks, addressed to the employer, in mid-April, 2016. Dr. Marks wrote that the employee was unable to work until further notice and asked the employer to contact him if it had further questions.
When it received Dr. Mark's letter, the employer, rather than contacting Dr. Marks directly, as he had suggested, asked the employee for more medical information as it felt the letter was inadequate. In its letter to the employee, the employer stated that it reserved the right to terminate the employees employment immediately for just cause if the requested information was not provided by April 22, 2016.
April 22, 2016, came and went but the employee was not terminated. Dr. Marks provided the employer with a brief letter of April 25, 2016 along with his medical notes. In his letter, Dr. Marks concluded that the employee was still unable to return to work. The employee was not terminated as had been threatened.
Instead, the employer suggested in a number of letters, dated April 26, 2016, and May 12, 2016, that the employee return to work on a part-time basis and work in customer service rather than his confirmed employment position as a Mover, as had been stated in the notice of termination. After each letter, the employee advised the employer that he was unable to work in any capacity. Again, the employer took no steps in response, such as terminating the employee.
On May 30, 2016, the employer requested that the employee have Dr. Marks complete a functional abilities questionnaire about the employee. Dr. Marks did so on June 28, 2016. It was provided to the employer along with a letter from Dr. Marks dated June 20, 2016 concluding that the employee was still unable to work due to back and knee pain and mental health issues. The questionnaire indicated that Dr. Marks had a follow-up appointment with the employee on July 21, 2016. The employer took no steps upon receiving the letter and questionnaire.
On July 21, 2016, Dr. Marks met with the employee and cleared the employee for light duties on a part-time basis. The employer was advised. The employer accepted this recommendation and, on July 26, 2016, wrote to the employee requesting that he return to work on July 27, 2016 and July 29, 2016 for a three-hour shift each day.
The employee returned to the employer and worked each day for three hours.
On July 31, 2016, the employer closed down its operations as anticipated.
The question that the court had to answer was whether the six months of “working notice” ostensibly provided to the worker should “count” in the calculation of his severance entitlements.
In resolving that such working notice could not be ‘counted’ by the employer, the Honourable Justice Kenneth G. Hood reasoned as follows:
 When the plaintiff received the notice of termination, he was incapable of working. Accordingly, he was entitled to damages representing the salary he would have earned had he worked during the notice period. The fact that he could not work is irrelevant to the assessment of these damages: see Sylvester v. British Columbia,  2 SCR 315, 146 D.L.R. (4th) 207, at para. 9.
 The defendant argues that, based upon Egan v. Alcatel Canada Inc. (2006), 206 O.A.C. 44 (Ont. C.A.), the plaintiff had no damages from January 31, 2016, when notice was given, to July 27, 2016, when he returned to work on a limited basis. Egan does not apply to the facts here. In Egan, the employee, while unable to work, was compensated by disability payments along with salary damages. The court found she was overcompensated by an award of salary on top of disability payments. Whether this is a correct decision in that it appears not to follow Sylvester is irrelevant because the plaintiff here, Mr. McLeod, has not received any disability payments, so any overpayment is not a consideration.
 The real issue is whether the plaintiff was incapable of returning to work so as to earn salary as part of the working notice period. The defendant argues that the plaintiff is seeking a windfall and that he should have returned to work on March 15, 2016 so that he could have earned 3 ½ months of working notice and that this combined with the two months paid under the Employment Standards Act, 2000, S.O. 2000, c. 41 (ESA) would effectively reduce the plaintiff's damage claim to a minimal amount, if for example six months, as argued by the defendant, is found to be the appropriate notice period.
 The plaintiff's decision not to return to work for the defendant until July 27, 2016 was reasonable. He relied on the medical advice that he was getting. The defendant never disagreed.
 Until he was able to return to work, the plaintiff could not be expected to undertake a serious job search. What potential employer would be prepared to hire someone when the potential employee was incapable of advising when they could actually start to work and what they would be able to do?
Justice Hood therefore ruled that the plaintiff was therefore entitled to damages for nine months base salary between January, 31, 2016, when he received his notice of termination, and October 31, 2016, when he started his new employment, less the six hours pay of $102 and the $6,117.28 paid by the employer pursuant to its obligation under the ESA. Note that Justice Hood found that the reasonable notice period in this case was, in fact, 12 months.
When I started this post I cited my mother’s wisdom about being unable to both be sick and have fun. The same is true of working.
In my 2010 paper, I cited the case of 1986 Court of Appeal case of McKay v. Camco, Inc., 1986 CanLII 2544 (ON CA), in which the Honourable Justice Blair had written the following:
The [employee]'s rights under the contract of employment to disability payments and to proper notice of dismissal are not only different in kind but also serve different purposes. The right to disability payments is intended to provide income to the appellant when he is unable to work. The purpose of requiring reasonable notice is to give the dismissed employee an opportunity to find other employment. As Lord Deas put it more than a century ago, in Morrison v. Abernathy School Board (1875-76), 3 S.C. (4th) 945 at p. 950, the object of notice is:... to give the servant a fair opportunity of looking out for and obtaining another situation, instead of being thrown suddenly and unexpectedly upon the world, with, it may be a wife and family to support, and no means, either from savings or otherwise, of supporting either himself or them.
This object was recently reaffirmed in Bohemier v. Storwal Int'l Inc. (1982), 1982 CanLII 1764 (ON SC), (varied on another point by this Court: 1983 CanLII 1956 (ON CA), where Saunders J. said at p. 267 O.R., p. 12 D.L.R.: "The principal reason an employer must give reasonable notice is to enable an employee to find new employment."
That is some solid, first principles employee law. Reasonable notice is intended to allow the employee to bridge from one position to another at no economic loss.
The point of working notice is to afford the employee the opportunity to look for new employment, while still earning an income. Pay in lieu of notice attempts to accomplish the same objective. To that end, I agree with Justice Hood, that one should not ‘count’ any period of working notice if provided to an employee absent from employment on an approved leave of absence.
However, I respectfully disagree with Justice Hood’s disposition of the case.
Had I been the motion’s judge, I likely would have employed the approach employed by Madame Justice Allan in the case of Whelehan v. Laidlaw Environmental Services Ltd., 1998 CanLII 6137 (BC SC) and found that the reasonable notice period did not commence until July 21, 2016, when the employee’s doctor met with the employee and cleared the employee for light duties on a part-time basis. I wrote about the Whelehan case and this approach in a much earlier blog post titled Written Notice of Termination for Employees off Work May Not Satisfy ESA Requirements.
Had the court employed such an approach in this case, then the plaintiff would not have been entitled to the receipt of wages for the period of time that he was absent from work on sick leave. In my opinion, the employee should not have been compensated for that time and Justice Hood erred in providing such compensation. Rather, he would have become entitled to 12 months’ pay in lieu of notice commencing July 21, 2016. Any wages earned after that date, i.e. from his new employment with Purolater, would be properly deducted under the duty to mitigate doctrine.
Takeaways for Employees with Labour Pains
The takeaway from this case for employees is really two-fold: (1) even though you’re absent from employment on a medical leave of absence, that does not necessarily mean that your employer cannot terminate your employment, especially if it is closing down; (2) if you are absent from the workplace when notice of termination is provided, then “working notice” of termination may not cut it, and you are likely entitled to some form of payment in lieu.
Takeaways for Employers with Labour Pains
The takeaway for employers is to be mindful of how and when notice of termination is provided. Ironically, had the employer said nothing about termination to the employee in this case until July 21st, when he returned, he likely would not have been entitled to wages for the period of time commencing January 31st. (Again, I think it was an error for Justice Hood to have made such an award and this point underlines that position.)
Moreover, employers must be aware that while working notice can sometimes provide an effective costs saving, it will not be appropriate in all cases.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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