All Notice and No Work Makes 'Working Notice' Null and Void

A recent decision of the Ontario Superior Court of Justice confirms that an employer cannot discharge its notice obligations if the employee is unable to actually work during the notice period.

Background

In McLeod v 1274458 Ontario Inc.[1] McLeod suffered a non-work-related car accident in September 2015, resulting in an unpaid leave of absence. In January 2016, while on his leave of absence, McLeod received notice that the employer was ceasing operations at the end of July and that he would be dismissed. The following six months were to serve as his working notice period. McLeod remained on medical leave, returning to work on light duties only four days before the shutdown. On termination, he commenced an action for wrongful dismissal.

Decision

The Court held that since McLeod was incapable of working when he received the notice of termination...