Employee's Duty to Mitigate in an Employment Dispute?

What is an Employee’s Duty to Mitigate in an Employment Dispute?

In a wrongful dismissal dispute, the employee has a duty to mitigate their damages. In short, this means that employees must take reasonable steps to find new employment that is comparable to their previous position.

What is considered “reasonable steps”?

Active job search: This includes updating your resume, looking for jobs, applying for jobs, attending job interviews, and networking. Put simply, an employee’s duty to mitigate in employment law requires regularly updating and tailoring these documents to specific job applications; actively seeking out and applying for suitable job opportunities; utilizing online platforms (Indeed, LinkedIn, etc.), job fairs, and personal connections to identify and pursue potential positions; engaging with headhunters and recruitment agencies to identify and pursue suitable opportunities, using social media to connect with industry professionals and share job updates, and practicing for interviews and seeking feedback to improve performance.
Accepting suitable and comparable job offers: If offered a comparable job, the employee should generally accept it. In other words, the employee should be open to accepting jobs that are similar to their previous position, including status and prestige. While an employee is expected to accept suitable offers, they are not obligated to accept positions that are significantly inferior or involve a substantial demotion. For example, if an employee was a senior manager, they may not be obligated to accept a junior-level position. Typically, this means an employee should compare and contrast the previous job and new job offer to decide whether employment law may require them to accept because it is comparable in terms of, among other things:
- Salary: The new position should offer a comparable salary to the previous one.
- Benefits: The benefits package should be similar in terms of health insurance, retirement plans, and other perks.
- Responsibilities: The job duties and level of responsibility should align with the previous position.
- Status: The new position should offer a similar level of seniority and authority.
Training or education: If necessary, the employee may need to undertake training or education to qualify for new employment. Generally, an employee is required to only invest in training or education that is likely to lead to comparable employment. For example, if an employee was a software engineer, taking a coding bootcamp to learn a new programming language could be considered a reasonable investment.

What happens if the employee fails to mitigate?

If an employer can prove that an employee failed to take reasonable steps to mitigate their damages, the court may reduce the amount of awarded in the form of a severance package or wrongful dismissal claim. This reduction can be significant, especially if the employee could have found comparable employment but chose not to. For example, if an employee was offered a suitable job but refused it without a valid reason, the court may reduce their damages by the amount of income they could have earned from that job.

Take-Away Lessons

The employer bears the burden of proving that the employee failed to mitigate their damages. This means the employer must demonstrate that the employee did not take reasonable steps to find new employment and that suitable employment was available.
The employee is generally not required to accept any job, only those that are comparable to their previous position. Put simply, a wrongfully dismissed employee is not expected to take extraordinary measures or accept any job, regardless of its suitability. Rather, the duty to mitigate is a reasonable one, and the court will consider the specific circumstances of each case.
Documentation is crucial for employees to document their job search efforts, including job applications, interview rejections, and any training or education undertaken. This documentation can be essential in demonstrating compliance with the duty to mitigate.

By understanding the duty to mitigate and taking proactive steps to fulfill it, wrongfully dismissed employees can increase their chances of recovering fair compensation. Consulting with an employment lawyer can provide valuable guidance and support throughout the process.

If you are an employee in Ontario facing a wrongful dismissal or constructive dismissal, it is important to consult with an experienced employment lawyer in Toronto to understand your rights and obligations.

Book a Consultation with an Employment Lawyer in Toronto

At Bune Law, we understand and are familiar the complexities of workplace law and are committed to helping both employers and employees navigate these challenges. Whether you are an employer or employee dealing with employment contracts, workplace disputes like a wrongful dismissal or constructive dismissal, or simply need guidance on your rights and obligations for a severance package review and negotiation, our experienced employment lawyer is here to assist you.

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If you need a Toronto employment lawyer who is committed to delivering strong results and proactive solutions, please contact Bune Law online or by phone today at 647-822-5492.