An Employee’s Duty to Mitigate after Termination

Terminated employees have a duty to mitigate their losses by seeking out comparable work as soon as possible. If they decide to sue their employer for not providing adequate compensation, a failure to mitigate can be fatal to their claim.

Employers must provide adequate notice upon termination

When an employee is terminated without cause, the Employment Standards Act sets out the minimum requirements for notice. This can either be in the form of “working notice”, wherein an employee continues to work for a certain period of time. Alternatively, an employee may be paid an amount equivalent to the period of working notice, called “pay in lieu”. In most cases, employers prefer to offer pay in lieu of working notice.

The minimum length of notice varies from case to case, based on factors that include length of service, employee age, the nature of the job and the availability of similar jobs.

Employees have a duty to mitigate their losses after being terminated

If an employee intends to bring a claim against their former employer for additional pay in lieu of notice, they must take reasonable steps to seek out comparable or similar employment elsewhere. A judge may examine the details of an employee’s job hunt in determining whether there were viable employment options available. Failure to pursue these options diligently can lead a judge to find against an employee, even where she may have been entitled to additional notice.

Waterloo employment lawyers advising employers and employees about termination

At Duncan Linton LLP, we provide timely advice to employers about termination, calculating pay in lieu of notice, and what steps they can take to comply with the requirements of the Employment Standards Act.

To employees, we offer guidance in anticipating or responding to termination. Our lawyers can help you to determine whether your employer’s offer is lawful, and, if necessary, to pursue a claim for fair compensation.

Call 519-886-3340 to schedule an appointment with one of our skilled lawyers, or contact us online.