Once an employee’s employment is terminated, the person is required to mitigate by seeking alternative employment. We often get asked by long service employees who have just been terminated if they may go back to school to retrain, so that they can compete with younger members of the workforce that may have more education. As in most questions in law, the answer is “it depends.”
In Hatch-Stewart v St Catharines Museum, the Chief Museum Complex Officer was terminated from her employment after 14 years. At the time of her termination, Ms. Hatch-Stewart was 52 years old and did not have a university degree, which the judge accepted was “the type of qualification most employers would look for in candidates at her level of employment in today’s job market.” Almost immediately after her termination, she began full-time studies to obtain a Bachelor of Recreation and Leisure Studies Degree.
The judge found that given the fact that a university degree was a paper qualification that prospective employers in the job market would seek for middle management positions, the fact that she began full-time studies to complete her degree was reasonable in the circumstances. However, the judge also noted that while she was studying, she was also seeking alternative employment and was prepared to accept such employment had it become available.
There are certain circumstances in which decisions to retrain have been found to be unreasonable. For example, if an employee decides to retrain in an entirely different field with which they have no experience, or if the decision to retrain is not motivated by an inability to find replacement work.
Dismissed employees are expected to be reasonable in their search for alternate employment. Whether returning to school is reasonable depends on the person’s circumstances at the time of termination, the industry they work in, the timing of their decision to return to school and their efforts at obtaining alternative employment both before and during their retraining. When deciding what to do after a termination, it is important to consult an employment lawyer to learn about your duty to mitigate.
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