An employee’s responsibilities do not necessarily end upon termination. Employees have an obligation to mitigate their losses by making reasonable efforts to seek comparable new employment. Although this may prove challenging, employees should not view their termination as an opportunity to leap into a new career path. In the recent Superior Court decision of Benjamin v. Cascades Canada ULC, 2017 ONSC 2583, the Court ruled that an employee should not view termination as a “free pass” to change careers. Although some may view returning to school as a commendable choice, the Court emphasized that this should not be done at the employer’s expense.
The Plaintiff, Patrick Benjamin was an unskilled general laborer with 28 years’ experience at Cascades Canada ULC (“Cascades”). He was terminated without cause due to a restructuring in the company. Following his termination, Cascades provided him with significant job search assistance and even attempted to draw his attention to 3 job
opportunities within Cascades itself. However, instead of applying to a position with Cascades, he decided to retrain as a skilled worker by attending a full-time welding program for six months. The primary issue on the motion for summary judgment was whether Mr. Benjamin had reasonably mitigated his losses upon termination
The Court dismissed Mr. Benjamin’s motion and ruled that he failed to reasonably mitigate his damages. If a dismissed employee (i) chooses to retrain instead of seeking comparable employment, and (ii) could have procured comparable employment, the employee should not be given a “free pass” to change careers. A terminated employee
cannot return to school to enhance job security or obtain better hours, and then simply collect damages for reasonable notice from the employer. The Court found that Mr. Benjamin could have secured a position at Cascades that was comparable in nature and remuneration to his previous position, and would have likely obtained this position given his experience. As such, the Court ruled that he failed to reasonably mitigate his damages. The action was dismissed and costs of $25,000 were awarded against Mr. Benjamin.
Lessons for employees
- If your employment is terminated and you want to return to school, it is risky to immediately do so. Normally, courts expect a terminated employee to seek comparable employment before returning to school. In some cases, seeking alternative employment and attending school or obtaining formal skills training at the same time is a good idea. Each case is different. If you are unsure of the implications of returning to school on the termination pay you are owed then you can seek advice from an employment lawyer.
- It is very important to meticulously document your attempts to find similar employment after your employment is terminated
If you have been terminated and are considering returning to school, you should consult a lawyer or contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to assist you.
The courts recently confirmed that layoffs remain a constructive dismissal even in the context of the Covid-19 pandemic.
Despite the many areas that limit unionized employees’ rights, these employees are able to bring human rights claims.
Terminated employees who worked for federal employers may be entitled to more termination pay.