12 Dec How is the execution of an employee’s duty to mitigate assessed in court?
When an employee has filed a wrongful dismissal or constructive dismissal claim, they have a duty to mitigate. This means that the employee must be actively searching for new employment to demonstrate to the court that they are doing what they can to regulate the losses from their termination. The court also expects the employee will have a willingness to accept another employment offer.
It is possible for the employee to fail their duty to mitigate, which could impact the amount of notice or pay in lieu of notice they receive from their previous employer.
How are these two factors evaluated in court?
The active search for new employment and the willingness to accept an offer of employment is judged on what is reasonable. The judge is not expecting this duty to be overly cumbersome or requiring more effort than a reasonable person would make under the circumstances. A judge also does not expect the employee to accept a position with any job. A willingness to accept an offer doesn’t mean the employee must accept an offer. The employee’s new job should adequately reflect their experience and skill.
To help the judge evaluate whether this duty is executed, the employee can record the number of applications submitted, interviews completed, resumes and cover letters sent, and connections made with recruiters or employers.
There are many factors that are considered when evaluating whether these efforts are reasonable because every employee has a different set of conditions. The judge will examine the level of skills required for their position, the number of jobs available, the acceptable amount of pay, whether a change of location is involved, and their current health.
A duty to mitigate may look differently than seeking employment with an alternate employer. If the employee has decided to become self-employed or start their own business, their duty to mitigate could involve tracking their income while performing their new role. Further, there is a chance the employee’s previous job may have taught them they need to improve their skills or switch industries. However, recording efforts to attend further professional education may not function as a duty to mitigate.
If you are an employee who has been wrongfully dismissed, please contact KCY at LAW by filling in an online consultation request or contact us by phone at 905-639-0999 to book your consultation today.