Canadian HR Reporter

CANADIAN HR REPORTER JANUARY 2018 EMPLOYMENT LAW 5 Jeff rey Smith LeGAL VieW The Canadian Payroll Association's InfoLine is a one-stop shop for payroll compliance knowledge. Fast and reliable answers at your fi ngertips. Find out how you, your HR team and organization can benefi t from InfoLine and other payroll compliance tools. NEED PAYROLL COMPLIANCE TOOLS? Download your complimentary copy of the Year- end Checklist to help you comply with payroll legislation and avoid the risk of costly penalties. Download your Year-end checklist now: PayrollCompliance.ca/CHR01 CANADIAN PAYROLL'S BEST KEPT SECRET Working notice of termination no good if employee unable to work: Court Says Ontario furniture mover on medical leave entitled to pay in lieu of notice An Ontario worker who was on medical leave when he received working notice of termination is entitled to pay in lieu of notice for his reasonable notice period, the Ontario Superior Court of Justice has ruled. Keith McLeod, 44, was hired in 1998 by a furniture and appliance store in Scarborough, Ont., to be a mover. His job involved driving a van and delivering furniture to the store's customers. McLeod was in a car accident on Sept. 18, 2015, that was unre- lated to his work, and he was in- jured. As a result, he needed time off to recover. The store placed him on an unpaid leave of absence and on Jan. 29, 2016, McLeod provided a medical certifi cate from his doc- tor saying he would be off work until March 15 due to knee pain and post-traumatic stress disor- der (PTSD) stemming from the accident. Two days later, on Jan. 31, the store sent McLeod a notice of ter- mination. e notice stated the furniture store would be shutting down operations on July 31 and his employment would be termi- nated on that date. e six months between then and the date of the company's shutdown would be considered working notice, and "if you are physically able to return to your position as mover before the ter- mination 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 certifi cate indi- cated as a likely return-to-work date, McLeod saw his doctor complaining of lower back pain that hadn't improved. McLeod informed the store he couldn't yet return to work and the store requested further docu- mentation to support his medical leave of absence. In the meantime, McLeod changed doctors and provided a letter from his new doctor 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 in- stead asked McLeod for more medical information as it felt the letter wasn't suffi cient. 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 provided him with a brief letter that stated McLeod was still unable to return to work. e store responded by suggest- ing McLeod return to work on a part-time basis in customer ser- vice. However, McLeod indicated he was unable to work in any capacity. At the end of May, McLeod was still an employee. e store re- quested McLeod's doctor fi ll out a functional abilities questionnaire for him, which the doctor did, along with a letter saying McLeod was still unable to work in any ca- pacity due to back and knee pain along with mental health issues. In addition, he informed the store McLeod had a followup ap- pointment 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 recom- mendation 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. Complaint fi led McLeod filed a complaint for wrongful dismissal due to lack of reasonable notice. He remained unemployed for three months following the shutdown, fi nding similar employment with similar pay at the end of October. e store argued that McLeod should have returned to work on his original expected date of March 15, 2016, so he could have earned three-and-a-half months of working notice. Combined with the two months required by the Ontario Employ- ment Standards Act, this would have minimized his damages to almost nothing, said the furniture store. e court noted that McLeod was entitled to reasonable notice of termination. ough the store indicated it was providing six AGE > pg. 14 McLeod fi led a complaint for wrongful dismissal due to lack of reasonable notice. He remained unemployed for three months following the shutdown.

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