If the employer has no work for such employee(s) why would they expect to be able to demonstrate on a balance of probabilities that their competitors do?
Remember, an employee need only seek comparable employment during the period of reasonable notice claimed within a relatively tight geographic scope. This employer strategy, absent compelling evidence, appears intended solely to lengthen trials and create the appearance of leverage in settlement negotiation. It’s hard to envision a Court rewarding same and such employers are exposing themselves to claims for costs and damages in addition to the normal termination cost. Afterall, Courts are well aware that many Canadians, regardless of income, are living paycheque to paycheque.
If the evidence upon which the employer seeks to rely is not provided to the employee or their counsel during the period in which the job opportunity was open, it’s unlikely that such evidence will be particularly persuasive following cross-examination in Court by a skilled litigator. As a result, such evidence is of little assistance to the employer when delivered to the employee’s counsel months or years after the fact.
What’s an employer to do? Run the employee’s job search for them? What do we really expect from older, life-long employees suddenly cast adrift by their employers? It’s not as though they can disguise their length of service on a resume in an age where internet hiring algorithms don’t assess employee intangibles?
The answers? Get excellent advice.