In wrongful dismissal cases, the onus is on the employer to prove a failure to mitigate.
Mitigation is about the search for alternative comparable employment, and there’s a two-part test:
1) Whether the employee’s efforts were reasonable, and
2) Whether the employer can demonstrate that comparable employment could have been found.
What makes this test so fascinating is that the bar for what’s reasonable for employers, evidentially speaking, is quite high, while the bar for employees is low.
Ellen Low shared an example of this on our podcast, Water Cooler Justice, where the plaintiff built a sailboat instead of looking for a job but the employer still managed to fail to prove that the plaintiff could have found another job.
Here we see that even when there’s an apparent failure to make reasonable efforts, like building a sailboat, it can still be difficult for the employer to discharge the evidentiary burden of the second part of the test.
In cases of wrongful dismissal, employers, practically speaking, must actively help employees find a job by sending job leads for comparable alternative employment when these positions are first posted and providing a good reference letter.
It’s in everyone’s interest for the plaintiff to get a job because it lowers the employer’s liability and the employee secures employment. Employers often miss this opportunity by refusing to give reference letters or alleging just cause, which can lead to extended notice periods, higher cost wards, or both.
A proactive approach reduces risk at trial but frankly, judges in Ontario do not seemed particularly inclined to deal with a high volume of wrongful dismissal cases where the only issues are length of notice and mitigation because by the time matters get to trial, any notice period claimed has already run to its conclusion and the plaintiff’s re-employment is known.
Want to learn more? Listen to Episode 1 of Water Cooler Justice, out now on Apple Podcasts and Spotify ⚖️
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Chris Robertson, B.A., LL.B.
Chris Robertson, B.A., LL.B.