Your employer doesn’t want to reduce headcount, but recent financial pressures have pushed even the most reluctant into letting employees go. The well-meaning employers that held out the longest may be surprised to learn that the notice periods required by the common-law in Ontario are substantial or that their form of employment agreement has been rendered unenforceable by intervening judicial interpretations.
This leads to offers on termination that are well below what a Court might award.
When presented with an informed counter-offer these same employers are often quick to suggest that their rockstar employee will easily and quickly find comparable alternative employment. This doesn’t take into account that:
- Experience is undervalued in industries of constant change. Many older and long-service employees will not have the pre-requisite skills and qualifications for comparable job postings.
- If the industry was booming, there would be no need for layoffs.
- Loss of employment causes a major disruption to the employee’s life
Your employer shouldn’t brush this off and this reliance on mitigation is misplaced. In any litigation, employers are required to lead evidence demonstrating the alleged ease of mitigation which is document-intensive and more easily said than done.
Given the cost awards associated with wrongful dismissal actions, advancing a mitigation argument will rarely be worth the effort. Many employers doing so may find themselves as reluctant defendants at a trial where the cost of termination is multiplied by the costs of litigation paid to not only their own counsel in defending the claim but to the successful plaintiff’s legal fees as well.
In our system of law, the party that asserts a fact must prove the fact. If times are tough, insisting that jobs are plentiful doesn’t seem like a winning strategy.