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, working notice was not appropriate. The Court also rejected the employer's argument that McLeod's medical documentation was insufficient to support an ongoing absence, when it had accepted that documentation during the course of his leave of absence.

The Court applied the Bardal factors to determine the appropriate reasonable notice period. McLeod was 43 years old, with 18 years of service with the Company. Addressing the Company's argument that McLeod was entitled to less notice because of his lack of special training or qualifications, Justice Hood noted that "in today's world and economy... [t]hose with skills and specialties change jobs frequently and rapidly. Those without skills and specialties, I believe, find it more difficult to find employment."[2] He held that the appropriate notice period was 12 months. This was reduced to 9 months when McLeod secured a new job.

What Employers Should Know

The main implication from McLeod is that working notice is not appropriate in cases where an employee is on a medical leave of absence. One of the purposes of working notice is to bridge the gap between termination and finding new employment and an employee incapable of returning to work cannot be reasonably expected to undertake a search for new employment. McLeod shouldn't stop employers from providing working...

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