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In October 2017, we wrote about McLeod v 1274458 Ontario Inc o/a Frontier Sales Ltd, 2017 ONSC 2073. In that case, the Ontario Superior Court of Justice held that an employee who is on an unpaid medical leave of absence cannot be given working notice of termination but instead is entitled to the salary he or she would have earned had they been able to work the notice period.
The employer appealed and the Court of Appeal released their decision in McLeod v 1274458 Ontario Inc o/a Frontier Sales Ltd, 2018 ONSC 1866. The Court upheld the decision finding the employee was rightfully entitled to 12 months pay during the severance period, notwithstanding that the employer requested working notice and he was unable to work.
The Plaintiff succeeded because his inability to work for medical reasons was well-documented, even if the employer disagreed. The Court confirmed that working notice does not apply as a means to reduce the notice the employer has to pay, when an employee is incapable of working.
As we wrote in October, employees who cannot work for medical reasons should take great care to ensure that their condition is properly documented. They should see a doctor regularly, and the doctor should make a written record of 1) the nature of the employee’s disability, 2) how the disability affects the employee’s ability to work, and 3) when the employee will be able to return to work.
Terminating an employee is always a sensitive situation and even more so when that employee is on sick leave. Great care should be taken, including receiving advice from an employment lawyer, before changing any term of employment or taking any action against an employee is on leave.
If you have questions about employee rights during a leave, or if you are an employee who is on a leave and would like to know your options, it is prudent to receive advice from an employment and disability lawyer. Monkhouse Law practices in both disability and employment law and can help you navigate these issues.
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