Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends disorder (PTSD) stemming from the acci- dent. Two days later, on Jan. 31, the store sent McLeod a notice of termination. e no- tice stated that the store would be shut- ting down operations on July 31 and his employment would be terminated on that date. e six months between then and the date of the shutdown would be considered working notice, and "if you are physically able to return to your position as mover be- fore the termination date, you will continue to receive your regular wages," the store said in the notice, which didn't reference any return date for McLeod. Return-to-work date moved On March 15, the day McLeod's original medical certificate indicated as a likely re- turn-to-work date, McLeod saw his doctor complaining of low back pain that hadn't improved. McLeod informed the store he couldn't yet return to work and the store re- quested further documentation to support his medical leave of absence. In the meantime, McLeod changed doc- tors and provided a letter from his new doc- tor in mid-April stating he was unable to work until further notice. e letter invited the store to contact the doctor directly with any questions, but the store instead asked McLeod for more medical information as it felt the let- ter wasn't sufficient. e store said if more information wasn't provided by April 22, it reserved the right to terminate McLeod's employment. e store's deadline passed and McLeod wasn't terminated, but his new doctor pro- vided him with a brief letter to give to the store that stated McLeod was still unable to return to work. e store responded by suggesting McLeod return to work on a part-time basis in customer service. How- ever, McLeod indicated he was unable to work in any capacity. At the end of May, McLeod was still an employee of the store. e store requested his doctor fill out a functional abilities questionnaire for him, which the doctor did along with a letter saying McLeod was still unable to work in any capacity due to back and knee pain along with mental health issues. In addition, he informed the store that McLeod had a follow-up appoint- ment on July 21. e store didn't take any action. After the July 21 appointment, McLeod's doctor cleared him for light duties on a part-time basis. e store accepted the rec- ommendation and assigned McLeod three- hour shifts of light duties on July 27 and July 29. McLeod worked the two assigned shifts before the store closed down on July 31. McLeod filed a complaint for wrong- ful dismissal due to lack of reasonable no- tice. He remained unemployed for three months following the shutdown, finding similar employment with similar pay at the end of October. e store argued that McLeod should have returned to work on his original ex- pected date of March 15, 2016, so he could have earned three-and-one-half months of working notice. Combined with the two months required by the Ontario Employ- ment Standards Act, this would have mini- mized his damages to almost nothing, said the store. e court noted that McLeod was en- titled to reasonable notice of termination. ough the store indicated it was provid- ing six months' working notice, at the time McLeod was not capable of working. As a result, he was entitled to damages equal to the salary he would have earned had he worked during the notice period. e court found that McLeod was on an agreed medical leave of absence when he received the termination notice and this didn't change. He provided medical infor- mation on his status and updated the store when his return-to-work date changed. In addition, the court noted that when McLeod provided the requested addi- tional information, the store didn't follow through on its threat to terminate him, so the information must have satisfied store management, said the court. As a result, there store contradicted it- self when it argued McLeod should have returned to work on March 15, as it had accepted the updated medical information that changed his return date to July, said the court. e court considered McLeod's age (43 at termination), his lack of special train- ing or qualifications, and his 18 years of service, determining he was entitled to 12 months' notice of termination. It also noted that McLeod returned to work in late July — even though the store was about to close down — because he was following his medical advice. Until he was able to return to work, he couldn't be expected to look for new employment, and once he did, he found work within three months — rea- sonable efforts to mitigate his damages, said the court. e court ordered the store to pay McLeod an amount equal to nine months' pay from his notice of termination on Jan. 31, 2016, to when he started new employ- ment at the end of October 2016 — an amount McLeod calculated in his claim to be $27,036. For more information see: • McLeod v. 1274458 Ontario Inc., 2017 CarswellOnt 11983 (Ont. S.C.J.). 6 | January 3, 2018 Wages would be paid if worker returned before shutdown « from WORKING NOTICE on page 1 Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as employee personal leaves, definition of the workplace, fixed-term contracts, and workplace harassment. You can view the blog at www.employmentlawtoday.com. When the worker provided the requested additional medical information, the store didn't follow through on its threat to terminate him.

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