Following dismissal from employment, a dismissed employee comes under a duty to mitigate his or her damages. The duty is one that the employee owes to him or herself. It is a duty to take reasonable steps to search for similar work to what was lost upon dismissal. The duty springs up once the employee is dismissed, although a Court will usually allow some adjustment time immediately following the trauma of the dismissal. The length of that adjustment time is uncertain, and the search shouldn’t be put off for long.
Let's take a look at the three elements of the duty to mitigate:
Reasonable Steps...
Reasonable steps are daily steps. Employee clients are well advised to take steps each day and to record those steps –a thorough job search record can be very helpful in settlement negotiations and will be essential if the matter goes to trial. The record can be as simple as handwritten notes in a calendar, or as sophisticated as a colour-coded spreadsheet with links to job postings. The record should include at a minimum the date, the step taken, and the result of that step. It doesn’t have to take long, but it can win or lose a case. Reasonable steps also include taking measures to improve one’s marketability, such as improving a resume or updating workplace skills.
...To Search For...
Searching does not mean finding. Nobody can make the dismissed employee find a job because that is out of their control. However, the dismissed employee will be accountable for the searching that they did, and the reason for this will be made clear in Part 2 of this post. Searching can be done by looking in the newspaper or online classifieds, using online job search engines or job alert services, signing up with a recruitment agency, networking with business contacts, attending events like job fairs, and making door-to-door cold calls. Creativity is allowed, as long as the steps are reasonable and as long as they get recorded.
...Similar Work
The duty to mitigate does not require the dismissed employee to take any job that comes along. In fact, it can be damaging to accept a lesser position or wage than what the employee had before the dismissal. The employee is entitled to hold out for a job that approximates what they had before the dismissal. Some aspects of similarity are the rate of pay, nature of the work, seniority, hours, location, and benefits. The personal attributes of the employee, such as education or training, may also come into play in some cases.
According to the BC Supreme Court, the duty to mitigate requires “constant and assiduous application for alternative employment, an exploration of what is available through all means": Smith v. Aker Kvaerner Canada Inc. The failure to meet this standard can be disastrous in a wrongful dismissal action, for reasons explained in the second part of this post.
About the Author: Julianne Yeager advises employees on all aspects of their workplace rights, during and after employment.
