In a wrongful dismissal lawsuit, the employer will bear the onus of demonstrating a failure to mitigate by the employee. This is a heavy onus and the employer should gather evidence about the job market and job openings that are similar to those occupied by the terminated employee in the general geographic area where the employee worked at the time of termination.
What else can an employer do to assist a failure to mitigate argument?
The court considered this in Umansky v. Zynpak Packaging Products Inc. 2003 CanLII 31353 (ON SC) and commented, critically, on an employee’s 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. 2015 ONSC 2580 (CanLII) 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 Taylor 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.
Things you might take away 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, offering at least some assistance to the employee will assist, though, in the end, the onus is very heavy. Of course, if the employee doesn’t accept or access the assistance provided, that could be relied on by the employer as evidence that the employee acted unreasonably and failed in his or her duty to mitigate.