Where an employee is wrongfully dismissed, they have an obligation to mitigate their losses by finding comparable employment. The Ontario Court of Appeal provided further insight into what this duty entails in the decision of Merida Lake v La Presse Inc (2022).
In that case, a 52-year-old employee had worked for a French language newspaper for five and a half years as a general manager. After being terminated without cause, the employee had conducted a job search, but remained unemployed two years after her dismissal.
At first instance, the motion judge deducted two months of the employee’s reasonable notice award due to a failure to mitigate. The motion judge had concluded that the employee’s attempt at seeking alternative employment was unreasonable as she had waited too long to begin, aimed too high, and applied to too few jobs. Judgement in the total sum of $97,491.87 was awarded.
The court of appeal, however, held that the employee’s reasonable notice award should not have been reduced on account of the purported failure to mitigate.
The test for whether an attempt at mitigation was sufficient involves an inquiry of: (i) whether the employee took reasonable steps, and (ii) if so, whether the employee would have likely obtained comparable employment reasonably adapted to their abilities as a result. The employer has the obligation to demonstrate that the employee did not meet this test.
In this case, the court of appeal held that the motion judge had erred in two respects. Firstly, the employee was not required to search for a lesser paying job – a terminated employee is only required to seek employment comparable in status, hours and renumeration to the position held at the time of dismissal. Additionally, the employee was not aiming too high by seeking jobs that would represent a promotion based purely on job title, as her search was tailored to positions that matched her experience and qualifications.
On the second prong of the test, there was no evidence to support that if the employee had applied for other positions that she would have found comparable employment. In other words, the employer had not demonstrated that the employee had somehow caused her own loss.
The takeaway is that, to ensure that they receive the full sum of damages for being wrongfully dismissed, an employee should undertake reasonable efforts and without undue delay to find employment that matches their skillset and qualifications, regardless of job title.
If you believe that you have been wrongfully dismissed, please contact our firm for a free consultation. There is no fee if we do not get you money.