Your wrongful dismissal lawsuit & your obligations to look for work

By Matt Lalande in Employment Law on April 08, 2018

Your wrongful dismissal lawsuit & your ongoing obligation to look for work

If you retain our Hamilton Lawyers to prosecute your wrongful dismissal case, you can be certain that we will advise you to never stop looking for work after you sue your employer for the lawful severance pay owned to you. You have an absolute lawful duty to keep looking for a job and not sit back and wait for your day in Court. You must take reasonable steps to mitigate (lessen) your losses or damages in a wrongful dismissal case.

Why do I need to keep looking for work if I have sued my employer for severance pay owed to me?

When you sue your employer they have a right to defend the case.  As part of their defence, your employer will always try to show that:

• you either found similar employment;
• by the exercise of proper job search, could have found similar employment reasonably adapted to your abilities, or;
• That you failed to take reasonable steps to try and find alternative employment.

In other words, the onus is on your employer to show that the you could have found other suitable employment to mitigate or lessen your financial losses.  Youremployer will normally have an obligation to prove that a position was available for you in the job market after dismissal. In the absence of such proof, you are entitled to recover remuneration which would have been earned but for the breach of the contract of employment.

Where does this obligation come from?

The law concerning your obligation to lessen of damages in wrongful dismissal cases was set out years ago – in an old case called in Michaels v. Red Deer College, 1975 CanLII 15 (SCC), 1975 CarswellAlta 57 (SCC) (“Michaels”). The Court noted that

If the employee can obtain other employment, he can avoid part at least of his damages. Therefore, in an action by the employee against the employer for a wrongful discharge, a deduction of the net amount of what the employee earned, or what he might reasonably have earned in other employment of like nature, from what he would have received had there been no breach, furnishes the ordinary measure of damages.         

Under the terms set out in the Michaels case, your employer would need to satisfy a Court that:

• you did not take reasonable steps to seek comparable employment “by the exercise of proper industry in the search” and;
• if you had done so, you “could have procured” such comparable employment

A recent case example?

In a recently decided case out of British Columbia called Chambers v. Global Traffic Technologies Canada Inc, the plaintiff Chambers was fired without cause. The Court reported in it’s decision that the relevant issues were:

• Chambers was 57 years old when he was fired;
• He worked for Global as “General Manager” for 2 years and 6 months;
• He was most senior employee of Global;
• Global LLC operated across Canada, the United States, and Europe;
• He reported directly to the Vice President of Global, and Chief Financial Officer and Chief Operating Officer of Global LLC;
• As General Manager at Global, Chambers was based in Toronto but had responsibility over three regional offices, namely Toronto, Boston, and Washington, D.C.;
• The revenue generated by those three offices was targeted to be $6.3 million per year;
• Chambers’ responsibilities at Global included the leadership and management of sales, operations, client service, profit and loss, and technical team; and
• Chambers was a member of the Global LLC “global leadership team”.

After reviewing the wrongful dismissal case facts, the Court awarded Chambers 9 months salary in lieu of notice.

Did the employee properly mitigate lessen his losses?

The Court also reviewed Chamber’s obligation to mitigate his damages. It was noted that following his dismissal, Chambers applied for a total of 280 job applications! From those applications, he was invited to and attended approximately 15 interviews.. The Court found that Global did not meet its onus to establish a failure to mitigate and Mr. Chambers certainly did enough to show the Court that he looked for work.

Applying for 280 jobs was certainly more than a reasonable effort to try and find alternate work.

Are you required to apply to positions with lesser responsibilities?

No. You are not. Global tried to argue that Chambers ought to have applied to management positions with lesser responsibilities than his employment with Global is contrary to law and the evidence. Under Michaels, an employee is required to search for comparable employment, not lower level employment.

Contact a Hamilton Employment Lawyer for your wrongful termination case

There are other factors that could be considered by a Court concerning your obligation to mitigate – such as

• What if you start your own business, what happens then?
• What if you’re sick?
• What if you can only find part time work?
• Can you change your?
• What if you were falsely terminated for cause – does anything change at that point?
• What about older employees looking for work?
• What if you had a specialized job and did not have a significant amount of job applications out because there were very limited suitable positions available for you?
• What if your employer does not provide you a reference letter to assist you in your job search?
• What if you fail to use services provided by your employer to find alternative employment?

If you have been terminated and you have questions about mitigating your losses, please do not hesitate to contact one of our Hamilton Lawyers. We would be happy to answer your questions and provide you with advice to help your wrongful dismissal situation.  Please call us at 905-333-8888 or fill in a contact form for more information about mitigation in wrongful termination cases.