In the employment context, the duty to mitigate is a duty on the employee to take reasonable efforts to secure comparable alternative employment after termination. A wronged employee is entitled to recover damages for the losses she/he has suffered but the extent of those losses may depend upon whether they have taken reasonable steps to avoid their unreasonable accumulation.
Comparable Alternative Employment
To mitigate one’s damages, an employee is not obliged to accept employment that is not comparable to their previous position.[1] An employer bears the burden of demonstrating both that an employee failed to make reasonable efforts to find work and that work could have been found.[2]
For example, in the case of Carter, the employee had no comparable re-employment prospects. At termination, he was in his fifties, with limited education, and had worked for most of his adult life for the employer. The employer did not provide the employee with a letter of reference, the employee searched for new employment while under the cloud of his former employer’s accusations of theft and other wrongdoing, and the employee checked advertisements, submitted a résumé, and reached out to his contacts in the hospitality industry. The best offer of employment that he received was not comparable in status, hours, or remuneration to his previous employment. There was no evidence of comparable opportunities available during the twenty-month notice period.[3] As such, the employee took reasonable steps to mitigate his damages, and the facts supported that he was not obliged to accept employment that was not comparable to position he held with the employer.
Reasonable Effort
The question of what constitutes reasonable effort by an employee to mitigate damages depends on the facts of each case. The burden of the dismissed employee is to take reasonable, not perfect, steps[4]. Courts consider age, health, location, and child care as factors.
Where the employer offers the employee a chance to mitigate damages by returning to work, the central issue is whether a reasonable person would accept such an opportunity. Multiple courts have held that a reasonable person should be expected to do so where:
- the compensation offered is the same;
- where the working conditions are not substantially different or the work demeaning;
- where the personal relationships involved are not acrimonious; and
- whether the offer of re-employment was made while the employee was still working for the employer or only after he or she had already left.
The critical element is that an employee is not obligated to mitigate by working in an atmosphere of hostility, embarrassment or humiliation.
If you require help with any employment issue, please give us a call for a free consultation.
[1] Carter v 1657593 Ontario Inc, 2015 ONCA 823 at para 6.
[2] Evans v Teamsters, Local 31, 2008 SCC 20 at para 30.
[3] Carter v 1657593 Ontario Inc, 2015 ONCA 823 at paras 4-7.
[4] Rothenberg v Rogers Media Inc, 2020 ONSC 5853 at para 51; Summerfield v Staples Canada Inc, 2016 ONSC 3656 at para 21.