The Duty to Mitigate

Terminated employees who sue their former employers for wrongful dismissal have a duty to look for a new comparable position.  This is called the duty to mitigate.  If an employee is offered comparable employment, he must accept it. Then, any income earned in that position is deducted from what the former employer owes the employee as damages.

Employees often ask us what this duty to mitigate involves.  The Ontario Court of Appeal recently issued a decision, Carter v. 1657593 Ontario Inc. (The Olde Angel Inn), dealing with what this obligation on employees requires.

The Case

The Court considered the case of a terminated employee, in his fifties, who had “worked for most of his adult life for one employer.” After termination, the employer did not provide Mr. Carter with a letter of reference.

Mr. Carter checked advertisements, submitted a résumé, and reached out to his contacts in the industry he had worked in at his former employer. He was offered one job that was not comparable in status, hours, or remuneration – which he declined.

The Court of Appeal considered Mr. Carter’s efforts to be sufficient.  The former employer could not point to any comparable jobs that Mr. Carter could have applied for and did not. The Court did not find that Mr. Carter ought to have accepted the one position offered to him.

Lessons for Employees

If you are terminated, and want to sue your former employer for wrongful dismissal, you have to show the court that you tried to find a new job.  However, the Carter decision suggests that older employees will not be held to a rigorous standard. Employees will also not be required to accept new positions that are not comparable in status, hours or pay.

If you have been terminated and have questions about a severance package or the duty to mitigate, please contact us at [email protected] or 647-204-8107.