Stuart Rudner here with another Rudner Law Employment Law update. I want to talk about what happens if someone loses their job, brings a claim for severance, but turns down a job that would otherwise be seen as reasonable and how it impacts their claim. That’s exactly the case that was faced by our Ontario court in Gannon vs. Kinsdale Carriers.
Ms. Gannon was employed by Kinsdale for about 23 years when the company folded. The owners of the company went out of their way to try to find new work for all of the employees, including Ms. Gannon. However, although she was interviewed and offered the job, she chose not to accept it. She then filed a claim seeking severance of about 22 months.
The case went to trial, and one of the issues was whether the job that she was offered was comparable to the one that she had with the defendant. Ultimately, the court preferred the defendant’s evidence, basically found that it was a comparable job, and that by failing to take the job, she had failed to mitigate her damages.
And as regular readers or viewers will know, anybody who’s bringing claim for wrongful dismissal seeking severance has a duty to make reasonable efforts to look for new work. And that includes accepting a reasonable offer of new work. In this case, the court found that Ms. Gannon did not act reasonably by refusing to accept the offer of new work, which was comparable.
And as a result, she was disentitled from her common law severance entitlement. So she got her statutory entitlements because those are obligations that the employer must pay regardless of whether someone finds new work right away or chooses not to take new work. However, she lost out on the balance, which was of course, the majority of what probably would have been around 22 or 23 months of notice.
She lost out on all of that because she didn’t take this job that was reasonable for her to take. So the lesson here for employees, if you are thinking about pursuing a wrongful dismissal claim, you must show that you’ve made reasonable efforts to look for new work. And if new work is available to you, you better think long and hard before turning it down, or you might be sacrificing a significant entitlement.
For employers, the lesson is very simple. It’s been something that we’ve been saying to our clients for many, many years now. It’s in your best interests to help a former employee find new work fairly quickly. Because if you do, that will reduce your obligation to them. So we always encourage our clients to help them.
You don’t necessarily have to do what the employer did in this case and try to find them new work. Although if you can, that’s amazing. But at the very least, provide positive references, contrary to popular belief, you’re not going to be sued for some sort of misrepresentation as long as you act honestly.
So provide positive references where possible. Consider providing outplacement counseling where possible. Help the person to find new work and that might save you significant amounts of money when it comes to severance. If you have any questions about any of this, please feel free to contact us. We’re happy to work with employers and employees to help you understand your rights and ensure that you get what you’re entitled to.
That’s all for today.
