Mitigation: Employee’s Obligations and Employer’s Rights
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Mitigation: Employee’s Obligations and Employer’s Rights

 

Stuart Rudner here with another Rudner Law video employment law update.

Today I want to talk about the issue of mitigation. We often talk about the fact that an employee that has been let go from their job has a legal obligation to mitigate, which means to make reasonable efforts to find new employment, and often this becomes part of the discussion when trying to negotiate a settlement with an employer, saying that the employee has failed to mitigate reasonably, but the reality is, as we often discuss, that the threshold for mitigating reasonably is generally seen to be fairly low.

However. we have a recent decision out of British Columbia in which case the employee was found not to have met their duty and as a result of that, his entitlement to severance was reduced. In that case, this was an individual who had been working for 26 years, was let go as a result of the pandemic, and the court found that he would have received or been entitled to 20 months of notice or severance, but that was reduced to 17 months due to his failure to conduct a proper effort to find new work.

The case is Moore v. Instow Enterprises Ltd. carrying on business as Kal Tire, and the important lesson to take out of this case is that the judge looked at the individual’s efforts to find new work and made a few key comments that I’m going to read from the judgment itself. What the judge said was that a reasonable job search may include activities such as reaching out to contacts within the industry, writing cover letters setting out why you qualify for a position, following up with telephone calls or email correspondence. The judge also said that there is an obligation to mitigate damages and to actively search for alternative employment, and in this case, a judge commented that he had not done so. The judge goes on to say his obligation is not limited to searching for exactly the same or a nearly identical job that he has been terminated from, in this case the individual is found to have looked at a very niche rule and not expanding out his search, as well it was found that he’d done a lot of searches but it wasn’t really clear how many applications he’d actually filed, so that’s an important point to take.

We often talk about the obligation to search for a new job, it’s to try to obtain a new job, which means having evidence that not only have you identified opportunities, you’ve applied for them, and indicate what the end result was.

The bottom line here, for an employee, if you’ve lost your job we will always tell you if you retain us you have an absolute duty to make reasonable efforts to find new work, and it is critical that you keep a detailed log of all of your efforts, which can be anything from attending at an employer’s offices and meeting with someone to apply for a job, to seeing a friend over a coffee and asking if they know of any opportunities, log everything but be very clear in logging efforts and communications as opposed to just job searches.

For employers, if you think someone is not making a reasonable effort, you can certainly ask for evidence of their efforts, but the other side of the coin here is that most courts will not reduce someone’s entitlement unless they are convinced that, not only did the person fail to make reasonable efforts, but if they did, they would have been successful in finding a job. So if you know of job opportunities in the industry, or that it will be reasonable for this individual, find them and collect them and send them to your lawyer, and we do this with our clients all the time, we tell them to find any possible job the person could have applied for, send it to us, we’ll send it on to their lawyer, which does two things, a) it might help them to find a job, b) it allows us or it gives us evidence to show that there were opportunities out there they failed to apply for if they don’t actually pursue it.

Bottom line is this is one of those areas which sounds simple but can get quite complicated, so make sure that you have proper legal advice and you understand your legal rights and your obligations as you go through this process.

That’s all for today, thank you once again for tuning in.

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