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Digest of the Week | When Notice Commences

Employer gave working notice to employee on medical leave. Employee awarded damages equal to salary he would have earned working during the notice period.

McLeod v. 1274458 Ontario Inc. | 2017 ONSC 4073 | Ontario Superior Court of Justice

Labour and employment law — Employment law — Termination and dismissal — Notice — When notice commences

Long-term employee was injured in non-work-related motor vehicle accident and granted unpaid leave of absence from position as van driver/furniture mover — Several months later, employee's doctor provided medical certificate indicating employee would be unable to return to work for another two to three months — Employer delivered notice of termination advising employee it was ceasing operating in six months and would consider period until then to be his period of working notice — Employer also advised employee could return to work if he was able but threatened termination if he was unable to provide further medical evidence justifying his absence — Employer later offered to have employee return in part-time or customer service position — Employee returned to part-time work for a couple of days before employee ceased operations — Employee brought action for damages for wrongful dismissal and motion for summary judgment — Motion granted in part — Plaintiff was incapable of working when he received notice of termination and was, therefore, entitled to damages representing salary he would have earned had he worked during notice period — Since employer never terminated employee during that period, it must have accepted whatever medical information he provided and could not now claim that he should have returned to work earlier.
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