Written on behalf of Peter McSherry
The obligation of the employee to seek out new employment after termination is well defined. It has been reviewed in a prior post.
General Rules on Mitigation
The failure of the terminated employee to fulfill this duty will result in a reduction of the damage claim based on the earnings that the employee would have earned. The exception to this rule is the statutory payments of notice and severance. These sums must be paid, regardless of any “mitigation” failure. In fact, if the terminated employee succeeds in finding new employment the day after termination, these sums are still owing.
Recent Example of No Damages
One recent case considered this issue on two fronts. The first issue involved three comparable jobs which the company had identified for the employee following a plant closure. These positions were in another location of the employer. The company also offered one-on-one coaching to help him with his candidacy for these positions. In this sense it was somewhat different from usual fact situation of the employer offering an alternative position. In this case it was an offer to apply for these positions.
The plaintiff did not follow up on any of these vacancies and also did not participate in the coaching sessions.
This issue was decided against the plaintiff. The company proved that it was likely that he would have been hired for at least two of the three positions and the court denied the claim for wrongful dismissal damages.
The second issue raised in the case focused on the plaintiff’s decision to retrain by attending a full-time welding program for six months. The decision on this issue was not a binding legal precedent as the case was decided on the first issue. The court’s views on this issue of retraining may nonetheless be influential on future cases.
The court in this instance concluded that a retraining program must not interfere with the general mitigation obligation. The employer, however, always must show that the employee failed in an active job search and, also, that had he undertook a proper job search, he likely would have secured an alternate position. This second aspect is usually the employee’s saving grace as this issue is very hard for an employer to prove. In this case, the employer controlled the evidence and could point to these three available vacancies and, also, lead evidence to show that the plaintiff likely would have been hired for at least one of them.
It may even be possible to claim the costs of the retraining program as a mitigation expense in certain cases.
The take away from this case is that should the terminated employee wish to take a retraining course, he should still maintain an active job search to be safe. This may require evenings spent applying for positions, but it is a small price to pay to secure the law suit’s success.
Let Legal Advice Guide Your Steps
If you have questions about your rights on termination of employment, including offers made by the same employer, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation
 Generally, but not precisely, one week per year to a cap of 8 weeks.
 Presuming a payroll of over $2.5 million annually and 5 years of employment, severance pay is one week per year to a cap of 26 weeks.
 This is the legal term for the duty to look for new employment post termination.