In employment cases, there is a general duty upon terminated employees to show that they mitigated their damages. This normally requires the employee to provide evidence that they have taken reasonable steps to find employment following their dismissal.

In a recent case, however, the court made a finding against an employee’s mitigation efforts, finding that she had not done enough to find a new job following dismissal.

Employee Terminated Without Cause

The employee worked for the employer, a daily online French language newspaper,as a general manager for about five-and-a-half years until her employment was terminated without cause on March 25, 2019. Although the employee was originally advised that her employment would end on May 30, 2019, she actually ceased working on April 30, 2019.

The employee was 52 years old at the time of her termination and was earning a base salary of $185,000 per year, as well as other benefits.

The employee applied to court for a determination of the amount of reasonable notice she was entitled to at common law.

Parties Disagree on Employee’s Mitigation Efforts

At the time of trial, two years after her termination, the employee had still not found a new job. She submitted that she had diligently looked for work, used the services of a career consultant, spent time networking and attending conferences, all to no avail. She also contended that ageism was rampant in her industry, which made it more difficult for her to find employment.

In response, the employer argued that the employee’s experience, including her experience in sales and in management, was transferable, and that there were available positions for her in the job market. It submitted that the transferability of her skills militated in favour of a shorter reasonable notice period.

Additionally, the employer argued that the employee’s efforts to look for work had been unreasonable, in part because she had focused on vice president positions – a title she had never held – rather than focusing on roles for which she had experience. It further submitted that the employee had focused efforts on positions in industries where she had no experience, as opposed to concentrating on media. The employer also noted that in the twelve months following her termination, the employee had applied for eleven positions, nine of which were vice president roles. As such, the employer alleged that the employee had not done enough to mitigate her damages, and sought to reduce the reasonable notice period by eight weeks.

The employee denied that her mitigation efforts had not been reasonable.

Court Finds That Employee Failed in Her Mitigation Efforts

First, after reviewing the relevant factors and case law, the court held that the employee was entitled to a reasonable notice period of eight months. It further determined that she was entitled to her annual bonus in the amount of $39,065.

The court then turned to the issue of whether the employee had taken reasonable steps to mitigate her damages.

The court began by explaining that an employee in a wrongful dismissal suit has a duty to mitigate their damages. The court then noted:

“The onus is on the [employer] to demonstrate that the [employee] did not mitigate their damages. The onus is not a light one.

The employer must prove that the employee failed to mitigate, and that had the employee taken reasonable steps to mitigate, he would have likely obtained equivalent or alternate employment. Where the employer meets the burden, the notice period may be reduced or eliminated altogether….

In certain circumstances, the court may reasonably infer that the employee would have obtained employment sooner if he had made reasonable efforts, even without direct evidence that jobs were available.”

Additionally, the court observed that, while the duty to mitigate theoretically begins at the date of termination, courts have acknowledged that employees generally require a period of readjustment and regrouping before pursuing re-employment strategies.

However, after reviewing the employee’s mitigation efforts, the court found that they had not been reasonable for the following reasons:

  • She had waited too long before beginning her job search. The court stated that it would have been reasonable to expect her to have begun in earnest as of May 1, 2019, but she had delayed her job search for an additional month before seriously looking for work;
  • She had aimed too high. The court held that, while there was nothing wrong with her having applied for vice president roles, she should have been applying for less senior roles as she continued to remain unemployed; and
  • She had waited too long before applying for any jobs and had applied to very few jobs.

The court concluded by stating:

“In these circumstances, I infer that, had the [employee] expanded the parameters of her job search, searched earlier, and applied for more positions, her chances of obtaining a position would have improved significantly. Although there is no direct evidence in front of me of other positions that the [employee] could have applied for, I find it is reasonable to assume that they existed. If vice president roles were available, more junior roles were also available. The [employee] chose unreasonably to limit her job search, which had a corresponding impact on her ability to find work.”

As such, the court reduced the employee’s period of reasonable notice by two months to account for her failure to take reasonable steps to mitigate her damages.

In the result, the court therefore ruled that the employee was entitled to a reasonable notice period of six months.

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