In a wrongful dismissal action, an employee has a duty or obligation to mitigate his or her losses by making reasonable efforts to search for new employment. This duty does not mean that the employee is required to take any job that is available, but the employee is required to look for a position comparable to the one he or she held at the time of dismissal.
This is something that is often misunderstood by employers. The duty to mitigate does not involve a standard of perfection, but of reasonableness. The Court of Appeal recently confirmed this in Maasland v. Toronto (City), a decision that can be found here.
In this case, the employer, the City of Toronto, tried to argue that the employee’s job search efforts were not reasonable because she failed to seek work outside of Toronto. Specifically, the employer argued that the employee should have applied for a job opening with the Region of York, a position that was 50 km from the employee’s home. The Court of Appeal, however, disagreed completely with this argument.
The employer also tried to argue that the employee failed to make reasonable efforts to search for new work because she chose to attend a criminal trial dealing with the murder of her brother instead. The employer considered this to be an impermissible reason for failing to look for a new job. Again, the Court of Appeal disagreed.
In this decision, the Court of Appeal underscored the fact that an assessment of the reasonableness of an employee’s mitigation efforts involves a contextual approach. In other words, an employer must consider all of the circumstances surrounding the employee, including things like the distance of the commute or familial challenges. It is a subjective exercise and not a one-size-fits–all approach. Employers would do well to keep this in mind.
This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.