Case Commentary – An Employee’s Duty to Mitigate After Wrongful Dismissal

In an earlier post, we discussed the duty of an employee to mitigate their damages following a wrongful dismissal. Where an employee believes that they have been wrongfully dismissed, they may have grounds for a claim against their former employer. However, the employee must take reasonable steps to look for another job, and minimize their losses from the termination. If they don’t, their damages could be reduced at trial.

What does the duty to mitigate actually require?

Although you may be obligated to look for another job as soon as possible, this does not mean you need to take any job that is available! Mitigation requires you to take reasonable steps to begin a job search, and to make a fair attempt to apply for positions that are suitable for your skill level, work experience, and salary expectations.

You cannot “hold out” for a better paying job; a lower salary is not a good enough reason to refuse a new position. That being said, there is no obligation to take a job that represents a significant decrease in pay.

Similarly, you are not expected to seek work outside of your training and experience, but it would be unreasonable to insist on finding an identical position before taking a new job.

Skov v. G&K Services Canada Inc.

This Ontario Superior Court of Justice wrongful dismissal case involved an employee who had been given a managerial title after many years of service, but had never actually held a managerial roleand did not have managerial experience. He was awarded damages representing a notice period of 18 months.

Following his termination, he updated his resume and created a job title for himself that misrepresented his actual role at the company. He only applied for managerial roles that required experience he did not possess.

His employer argued that this constituted a failure to mitigate, and the Court agreed. By consciously choosing to apply for positions that did not match his experience and qualifications, the Court held that the claimant failed to seek employment that was comparable to his previous role. Accordingly, his damages were reduced to 16 months.

Waterloo employment lawyers assisting with wrongful dismissal claims

Employees that are considering a wrongful dismissal action should keep records of their job search and applications as evidence of the efforts they are making to mitigate their losses. In addition to assisting with any potential legal action, an experienced employment lawyer can provide guidance regarding your duty to mitigate.

At Duncan Linton LLP, our employment law team regularly advises employees about their rights and obligations following a dismissal or termination. We can offer timely advice and practical guidance on mitigation, severance and other legal issues. For employers, we can assist in preparing for a dismissal or termination to minimize risks and ensure you are meeting your legal obligations. In the event of a potential claim, our lawyers have years of experience advising businesses of all sizes about employment matters.

To make an appointment with one of our lawyers, please contact us online, or call 519-886-3340.