Fired: Now should You Look for a New Job?
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 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.
The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.
Justice for Unionized Employees
Unionized employees often seek our advice regarding human rights issues in their workplace. Sometimes this is because human rights violations have occurred and the union is not assisting them. Other times, the union itself may be part of the problem. The rights of...
Employee Entitlements Upon Termination
Termination is a stressful experience for any employee. An employee who has been fired needs to understand what their employer owes them, and what their employer is offering them. When employers do not make this clear, additional damages could be due to the employee....
Notice of Termination: Appeal Court Weighs in
When terminated, an employee should generally receive reasonable notice of termination or pay instead of notice. This is unless the employee has signed a contract that contains an enforceable termination clause (which we’ve written about here). The calculation of the...