A Mulligan in golf is, of course, a second chance without consequences. A "do-over". Some take Mulligan’s more frequently than others, but that is a discussion for another day, possibly when the fall weather is not so bitting.
The Court in a recent Ontario case (Small Claims Court) highlighted the need for employers to clearly provide working notice or risk a court concluding that the notice was ineffective or at least ineffective in the manner the employer hoped. The case is Bomhof v Eunoia Incorporated, 2013 CanLII 65859 (ON SC).
In this case the employer, due to market conditions, terminated the employment of its clinical trials coordinator “on notice”. It’s letter was dated January 3, 2011 and the termination was effective on February 11, 2011 (some 5 weeks after the date of the letter). On January 11, 2011, the employee brought to the employer’s attention that the employers’ notice failed to comply with the Employment Standards Act, 2000.
According to the Court:
[the employer] responded by handing her a revised termination letter on January 11, 2011, in which the termination date was changed from February 11 to February 25, but the date of the letter remained January 3. He acknowledged to Ms. Bomhof that he had been mistaken about the duration of her employment. January 3 to February 25 would be a working notice period of just under 8 weeks. January 11 to February 25 would be roughly 6.5 weeks.
The Court relied on Di Tomaso v. Crown Metal Packaging Canada LP (2011), 282 O.A.C. 134 (C.A.) where the Court of Appeal held that that a notice of termination must be “clear and unambiguous” and “must include the final termination date.” In Bomhoff, this was determinative to the Court’s conclusion that:
Something as important to employees and employers as the effective date of termination should not be subject to unilateral change by the employer without affecting the effective date of the notice. Such a position would create unnecessary and inappropriate uncertainty in employment law, both at common law and under the Employment Standards Act, 2000, S.O. 2000, c. 41
The notice began to run from January 11, 2011, not January 3, 2011.
The Court found, on the usual Bardal factors, that the terminated employee was entitled to 10 months reasonable notice at common law.
The employer argued that the terminated employee had a duty to mitigate her losses and that she failed to do so.
The Court confirmed that the employer bears the burden of proving that the employee failed meet her duty to mitigate. The Supreme Court of Canada put it this way in the leading case of Red Deer College v. Michaels, 1975 CanLII 15 (SCC):
It seems to be the generally accepted rule that the burden of proof is upon the defendant to show that the plaintiff either found, or, by the exercise of proper industry in the search, could have procured other employment of an approximately similar kind reasonably adapted to his abilities, and that in absence of such proof the plaintiff is entitled to recover the salary fixed by the contract.
The employer has a heavy onus and the Court summarized some of the elements as follows:
To overcome the onus, the employer must show that the employee’s conduct was unreasonable in all respects. (Somir v. Kohler Canada Co., 2006 CanLII 42369 (ON SC))
According to the court, the defence must also demonstrate that the alleged failure to mitigate in fact caused the plaintiff to earn reduced income during the notice period. As was said in Rowe v. General Electric Canada Inc., 1994 CanLII 7389 (ON SC):
Proving a failure to take reasonable steps to mitigate is not sufficient - there must be direct evidence, or evidence sufficient to support an inference, that the omission of the plaintiff was causative. The evidence must prove that the plaintiff failed to take reasonable steps to mitigate the loss and that had such steps been taken they would have reduced the loss. The breach of the plaintiff’s duty to mitigate will only be relevant if the breach is proved to be causative.
In Rowe the Court concluded that the terminated employee had not taken all reasonable steps to seek alternative employment. In particular, he failed to avail himself of the outplacement counseling services and other services put at his disposal (no charge) by the employer. That said, the Court found that “the evidence does not establish that had he done so the loss would have been less.” As such, the Court dismissed the employers’ mitigation argument.
The Court reached the same conclusion in Bomhof:
In the case at bar, my conclusion is that the defence has failed to establish on a balance of probabilities that the plaintiff’s damages would have been reduced in whole or in part by her alleged failure to mitigate. The evidence falls short of proof on a balance of probabilities of the causation element of the alleged failure to mitigate. There is no evidence that any specific position was available and I am not satisfied that had Ms. Bomhof applied, for example, to any potential hospital positions that she probably would have attained such a position and secured better income during the notice period.
The Court also suggested that the mitigation obligation might be somewhat different for someone who was 64 years of age (as in this case) than “than for younger people”.
The Court does a very nice job reviewing the authorities on mitigation.