Mitigation has been a subject that I’ve discussed frequently in the 12 years this blog has been in existence. It’s not a glamorous topic, but an important one that comes up in vitually all wrongful dismissal cases.
The employer bears the onus of demonstrating a failure to mitigate on the part of the employee. As I noted in the 2005 post “there are a number of things the employer can do and track, including the job market and openings, to bolster its "failure to mitigate" argument.”
What else can an employer do to assist a failure to mitigate argument?
Well, in Umansky v. Zynpak Packaging Products Inc., 2003 CanLII 31353 (ON SC) the Court commented, critically, on an employees’ failure to ask for a letter of reference to assist with the job search. The Court said:
[The plaintiff] did not request a letter of reference from her former employers, in circumstances where there is no indication that they would not have willingly done so. Such a request, even if perfunctory, seems, in my view, a reasonable first step for anyone who is seriously entering the job market.
More recently, the Court in Maxwell v. United Rentals of Canada Inc.  O.J. No. 1998 (S.C.J.) (decided on April 20, 2015 and not reported on CanLII at this point) the Court discussed mitigation. Mr. Justice G.E. Taylor was concerned by the fact that the evidence showed that the employer “offered no assistance to the plaintiff in seeking and obtaining alternate employment.”
Mr. Justice Tayor refers to his earlier comment in a case called Aucoin v. Liturgical Publications of Canada Ltd., 2009 CanLII 10667 (ON SC):
No assistance was given by Liturgical Publications to Eric Aucoin to help him secure alternate employment. He did not receive a signed letter of reference until shortly before the trial. He was provided with no outplacement counselling. He was not told about the job opportunities found by Michael Morrissey on his searches of the Workopolis website. I am not suggesting that the employer has an obligation to provide outplacement counselling to a dismissed employee or bring job opportunities to the attention of the former employee but if an employer intends to argue the failure to mitigate on the part of the former employee, it would be well advised to present evidence of assistance that was offered to the terminated employee during his or her job search.
The Court in Maxwell concluded that the employer presented no evidence of assistance offered to the terminated employee during the job search.
What’s an Employer to Take From This?
While the employer is not required to provide job search assistance to a terminated employee, it is prudent to provide at least some level of assistance in a not for cause termination. That might, depending on the circumstances, involve a basic letter of employment, a more formal letter of reference, job search assistance to help the individual navigate the employment process or more advanced relocation/outplacement/career transition assistance.
If the employer is sued and is going to argue that the employee failed to mitigate, it is prudent to have at least offered some assistance to the employee. Of course, if the employee doesn’t accept or access the assistance provided, that could be relied on by the employer in the mitigation analysis.