Discipline and Dismissals - Articles & Videos

The duty to mitigate requires an employee who has been wrongfully dismissed to make reasonable efforts to mitigate their damages (i.e.: lost employment income) by finding comparable employment. The key words here are reasonable and comparable. Employees are not expected to make finding new work their new full time job. Likewise, employees are not expected to go and find just any job; a software engineer does not have to accept a line-cook position. The catch is that once an employee accepts a new job – comparable or not – every dollar earned during their notice period is deducted from any award they ultimately receive.

Our clients often ask what is the point of having a properly drafted employment contract? As they say, “the outcome of a claim for wrongful dismissal cannot be that bad; everyone knows that the most an employee might receive is a month per year of service, and sometimes that is not that much”, right? The reality is much different.

Stuart likes using the line: “just cause is not a lost cause” to support the proposition that while establishing just cause for dismissal is difficult, it is not impossible. The same is not true for termination clauses that purport to define “just cause”, a common law standard.

We often tell our clients that the reasonable notice period is a bridge to another role, not a windfall for a dismissed employee. Notice is meant to support an employee until they find a job, and its length is based on the Court’s estimation of how long it will take the employee to do so.

A toxic workplace culture isn’t just bad for morale, it can also create significant legal risk for the employer. In the recent case of Kennedy v. Kingston Area Taxi Licensing Commission, the court found that a persistent hostile work environment constituted constructive dismissal. The result: the employer was held liable for 24 months of notice, the unofficial “maximum” award for common law notice, as well as $25,000 in aggravated damages.

As employment lawyers, we frequently caution our clients that determining the appropriate common law notice period for a dismissed employee is “more of an art than a science”. Indeed, while we are familiar with the core relevant factors that courts will consider – such as an employee’s age, length of service, type of position, etc. – there is no formula that can be used to predict this outcome with certainty.

An employee dismissal creates a two-way street of obligations. The employer is required to provide the employee with reasonable notice…

The current economic climate, marked by tariffs, economic uncertainty, layoffs and restructuring, has understandably created concerns for many employers and employees.