Failure to mitigate in wrongful dismissal claim can be costly
If you are involved in a wrongful dismissal claim against your former employer, what you are really claiming is that based on your age, seniority and level of responsibility, you should have been given more pay in lieu of notice than the employer offered. Ultimately, a judge will decide based on case law.
Until there is a settlement or a judge’s decision, you have an obligation to look for reasonable alternative employment. Whether it seems fair or not, if you are successful at finding a new job quickly, the employer is going to get a break in how much the judge will award. You are claiming for damages for lost wages you would have received if you had been given more notice of the termination. If you replace those wages during the notice period the judge awards, every dime will be subtracted from what you get.
You can’t get it twice. Your obligation to look for reasonable alternative employment is called mitigation by lawyers. If a landlord has a tenant run out on them without giving appropriate notice, the landlord has the right to claim lost rent for that period. The landlord, however, has to prove that they tried to rent the abandoned unit out immediately and if they do, they can’t get it twice. There is no double-dipping. The landlord must try to mitigate their damages and you must do the same by looking for reasonable alternative employment.
Although the onus is on the employer to prove that you failed to make reasonable efforts, until there is a settlement, you should journal your job search efforts daily, or at least semidaily. You should track everything you do, including calling contacts to see if they know of opportunities. Your obligation is to look for something reasonably similar to the job you lost with comparable pay. That does not mean it has to be the exact same job with the exact same pay. Some flexibility is expected. If you get offered a job that a judge thinks you should have taken, the consequences can be severe.
When the pandemic struck, Steven was terminated from his printing plant after 41 years of service. Why the employer did not simply lay Steven off rather than terminating him is a mystery. If you lay somebody off, you are communicating that you hope to return them to work. The relationship is not severed. A termination is a termination.
A few months later, Steven was offered his job back. He said no. At around the same time, he was offered a similar job with a new employer. That, too, he refused.
Steven’s argument at trial for not returning to his old job and mitigating his damages was that he didn’t trust the employer after the sudden termination. The judge, however, thought that the employer’s offer of a return to work was genuine. The employer did not appear to have any antipathy toward Steven. It was the same job, working the same hours and getting the same pay. The judge said that Steven would have been entitled to 24 months’ pay in lieu of notice, but he failed to mitigate his damages. The judge awarded him a few months’ lost wages to compensate him up to the date he should have returned to his old job.
The unspoken truth of this case is that Steve was 70 years old when the pandemic hit and he was terminated. It probably became pretty clear to the judge that Steven was ready to retire anyway and was just looking for a package. His excuses for not accepting the two positions he was offered were thin.
There is some case law out there suggesting that employees do not have to do that much to show they have mitigated their damages. Personally, I would not count on that case law. It would be counterintuitive for most judges to award a significant amount of damages when you have done very little to look for new opportunities. If there is case law a judge does not like, they will find a way to get around it if they can.
So when your wrongful dismissal lawyer tells you to document a job search, listen to them. If you are offered a job and thinking of turning it down, talk to your lawyer first. A failure to mitigate can be costly.
This article was originally published by The Hamilton Spectator.
