Can I go back to school to retrain after being terminated?
As we have written before, once a person’s employment is terminated, that person has a legal obligation to look for alternative employment. We often receive calls from recently-terminated long service employees who ask us whether they can go back to school to retrain so that they can compete with younger members of the workforce. A recent decision from the Ontario Superior Court of Justice shows why recently-terminated employees should proceed with caution when deciding whether to return to school.
Benjamin v Cascades Canada ULC
Mr. Benjamin had been employed by Cascades Canada ULC (“Cascades”) as a line operator for 28 years before his employment was terminated without notice of termination. Mr. Benjamin was provided with termination pay and severance pay slightly above his minimum entitlements under the Employment Standards Act.
Mr. Benjamin sued his employer for pay in lieu of 24 months’ notice of termination, less the amounts he already received. Cascades submitted that Mr. Benjamin failed in his obligation to mitigate his losses upon his termination when he decided to retrain by attending a full-time welding program for 6 months rather than applying for three positions available at Cascades, which were similar to Mr. Benjamin’s work and remuneration. A human resources representative at Cascades testified that Mr. Benjamin was both qualified and likely to secure all three of the positions.
Mr. Benjamin argued that his decision to retrain was reasonable because he needed to improve his skills after 28 years, and that attending the program would maximize the chance of finding a job at his former income.
The judge disagreed and described the test on the ‘duty to mitigate’ in wrongful dismissal cases as follows: an employer must establish that
(a) the employee did not take reasonable steps to seek comparable employment, and
(b) if the employee had done so, the employee could have procured such comparable employment.
If the employer is able to establish these facts, the employee has failed to mitigate, which can have the effect of reducing or eliminating an employee’s entitlement to notice.
The judge found that although an employee’s decision to seek retraining is not, by default, sufficient to prove that the employee failed to reasonably mitigate, in these circumstances, to allow a dismissed employee to ignore comparable employment in favour of retraining would have the effect of giving that employee a “free pass” to change careers at their previous employer’s expense.
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.
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...