Being on medical leave and away from work can be a stressful time. Money may be short, and you may be dealing with physical or emotional pain that is keeping you from returning to a job. It’s easy to imagine that receiving notice of termination while on medical leave would only compound the stress of such a situation.

In a recent decision from the Ontario Superior Court of Justice, the court had to determine whether someone who was on medical leave when he received notice of termination was entitled to damages for money he would have earned during a standard notice period.

18 years of service leading up to an accident

The employee started working with the employer in 1998. The employer’s business was the sale and delivery of residential furniture and appliances from a single store. The employer worked as a mover for the company, driving a van and delivering furniture and appliances to the employer’s customers. The employer was involved in a non-work-related car accident on September 18, 2015 and was unable to immediately return to work. He was placed on an unpaid leave of absence. On January 29, 2016 the employee received a medical certificate from his doctor indicating he would be unable to return to work until March 25 of that year as a result of knee pain and post-traumatic stress disorder stemming from the accident. The certificate was given to his employer.

A notice of termination is sent out

Two days later, the employee was sent a notice of termination. The notice explained that the employer was shutting down its business on July 31, 2016 and that his termination would be effective on the day the business shut down. The employer stated that it considered the period between January 31 and July 31, 2016 to be the period of working notice.  The notice also said, “If you are physically able to return to your position as Mover before the Termination Date, you will continue to receive your regular wages.”

On March 15, 2016, the employee was seen by his doctor whose notes stated that he was still not able to return to work. After the employer asked for more evidence, the employee received a letter from another doctor in mid-April 2016 stating that the employee was unable to work until further notice.

The employer asked the employee to produce another letter by April 22 and advised him that failing to do so would result in his termination. April 22 came and went without any action from the employer. The employee provided another letter to the employer on April 25. The employer did not terminate the employee at that time, and instead suggested that he work part-time in another capacity, such as in customer service. The employee responded that he was unable to work in any capacity.

On May 30, 2016 the employer asked the employee’s doctor to complete a functional abilities questionnaire about the employee. The doctor provided the requested document to the employer on June 28, 2016, concluding that the employee was still unable to work due to back and knee pain as well as mental health issues. A follow up appointment was scheduled for July 21, 2016.

A brief return to work

The employee was cleared to return to light work duties on a part-time basis on July 21. The defendant accepted the doctor’s recommendation and requested that the employee report for work on July 27 and 29 for three-hour shifts each day. The employee reported for work each day until the employer shut down its business on July 31, 2016. The employee started working for another company, in a similar role and for similar pay, on October 31, 2016.

Determining damages

The employee filed a claim stating that he was entitled to damages representing the compensation he would have made during the notice period based on his salary and that his inability to work during that time should not be a factor in determining his entitlement to notice. On the other hand, the employer argued that the employee was not entitled to damages for the period of time he was unable to work, and furthermore, that he should have returned to light duties on March 15, 2016, in order to work for three months and extend his entitlement to notice.

The court rejected the employer’s position that the employee had no damages nor was owed anything during the period of time he was unable to work. In referencing a 1997 decision from the Supreme Court of Canada, the court stated that an employee’s inability to work is irrelevant to the assessment of damages. Damages should be calculated on the amount of time an employee could have worked during a notice period.

The employee was awarded nine months of compensation, starting on January 31, 2016 when he was issued his notice of termination to October 31, 2016 when he started a new job.

The employment law team at Duncan, Linton LLP regularly advises employees of their rights and obligations following a dismissal or termination. We provide employees with timely advice and practical guidance on all issues of employment law. We also help employers in preparing for dismissals or termination in order to minimize risk and ensure that the legal obligations owed to an employee are being met. To make an appointment with one of our lawyers, please contact us online, or call 519-886-3340.