Litigation Over Poor Mitigation: Court Reduces Notice Period

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You might know that employees have a legal obligation to mitigate their damages when they are let go, which means they must make reasonable efforts to find new employment. However, what does “reasonable efforts” even mean?

A recent decision sheds some light on this.

In Toy v 0954516 BC Ltd., 2022 BCSC 1161, the employee was 61 years old and in the position of a fuel and scale attendant at the time of dismissal. He had been employed with the company for five years and was earning an annual salary of approximately $40,000. He sued the employer for wrongful dismissal.

The court initially found that the employee was entitled to 5.5 months of notice. However, the court reduced the notice period by two months due to the employee’s failure to mitigate his losses.

In particular, the employee was found to have applied to only three jobs in 2021 through computer searches and driving around looking for available jobs. Although he secured a job, eventually, the court found that this did not constitute reasonable efforts on his part, and that if he had made reasonable efforts, then he would have likely found new employment sooner than he did. The court stated:

“[35]     Mr. Toy had an obligation to take active steps to search for reasonably similar employment. I find that reasonableness in the circumstances required Mr. Toy to apply for more than three jobs in 2021.

[36]      I find that if Mr. Toy had made reasonable efforts to search for a job, on the balance of probabilities, there is a strong likelihood that he would have been able to secure alternative employment sooner. His actions were not reasonable in the circumstances. I reduce the notice period by two months.”

So what’s the moral of the story here?

If you are an employee who has been let go, you should be mindful of your duty to make reasonable efforts to find new work and document your job search efforts. We always tell our employee clients who have lost their jobs that it is critical to keep a detailed log of all their job search efforts, which can range from:

  • searching for jobs online,
  • doing informational interviews,
  • applying to particular jobs, or
  • networking.

It is important to log everything that you are doing as an effort to find a new job, so that you have supporting evidence in the event the employer alleges that you have failed to mitigate. Five months from now or even a year from now, you will probably not remember what specific actions you took to find a job!

On the other hand, if you are an employer who thinks an employee you have let go is not making a reasonable effort to find a new job, you can ask for evidence of their job search efforts. In doing so, keep in mind that the standard is that of reasonableness, not perfection. To establish a failure to mitigate, you would have to show:

  • the person failed to make reasonable efforts, and
  • if they made reasonable efforts, they would have been successful in finding a job.

We often tell our employer clients to gather job opportunities that are comparable to the employee’s role or that the employee could have applied for and sending them to us, so that we can pass it on to the employee’s lawyer. What does this do? First, it might help the employee find a job, and second, it establishes evidence that there were opportunities out there that the employee failed to apply for (assuming the employee did not pursue such opportunities).

We assist both employers and employees in all aspects of the employment relationship, and would be happy to assist you whether you are an employee faced with a termination, or an employer who has dismissed an employee or is planning on dismissing an employee.

Be Sure to Check Out our FAQs on Mitigation

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