No Failure to Mitigate if No Available Work

Written by Lewis Waring, Paralegal, LL.B., Articled Clerk, Editor, First Reference Inc.

In a recent ruling, it was found that an employee was successful at fulfilling his mitigation obligations, even though he was not successful at mitigating his loss. Although failing to look for a job seems like a clear failure to mitigate a loss of employment, this ruling clarified that an employee only fails to mitigate when comparable employment is actually available. If an employee’s job market does not contain any comparable roles, any failure to take reasonable steps to find comparable employment will not be a failure to mitigate because, in reality, no mitigation was available.

Background

The employer ran a daily online French-language newspaper. The employee had worked as a general manager since 2013 until she was dismissed in 2019. Following her dismissal, the employee conducted a job search but remained unemployed for at least two years. During that period, the employee’s job search efforts had been subpar. The employee did not begin searching for work for over four months. However, once the employee began searching for employment, she put in significant effort. The employee searched daily on online job boards, attended networking events, utilized career transitioning services and paid privately for additional coaching. Although the employee had searched for a variety of roles, she applied for only seven jobs. Of these seven jobs, six were for the role of vice president.

Ultimately, the employee successfully mitigated her loss of employment despite the fact that she was unable to obtain comparable employment. Although the roles she applied for were arguably more senior in title than the role from which she had come, their duties closely mirrored her experience. Although the employee’s job search suggested that she had only applied for a limited number of roles that were too senior, her efforts in networking, counselling and researching demonstrated that she was putting in the work to find comparable employment.

Analysis

In this ruling, the employees’ failure to begin looking for work for four months was uncontroversially accepted as a failure to take reasonable steps. However, suggestions that the employee’s job search once it began had been too narrow, that she should have applied for roles less senior and more diverse than vice president, were dismissed. The employee’s failure to find comparable employment was not her failure to take reasonable steps but, instead, the reality that comparable employment was not available. Although the title of the roles happened to appear senior, the roles assigned in each of these roles were more akin to those generally assigned to more junior employees. While the title of these roles appeared more senior, the actual roles themselves were comparable.

Also, although it was possible that the employee might have successfully secured comparable employment if she had applied for differently titled roles, there was no proof that such a possibility was accurate. In reality, this suggestion may or may not have been true. In this sense, this ruling demonstrates an employer’s need for evidence in proving a failure to mitigate. If the employer in this ruling had been able to show that other non-vice-president roles were available to the employee, it might have convinced the court that the employee had missed her chance to obtain comparable employment.

This ruling demonstrates the reality that the failure to mitigate is a two-step process. The two main issues to consider when determining whether an employee has mitigated his or her loss of employment both centre around the concept of “reasonable steps.” “Reasonable steps,” in this context, refers to an employee’s duty to put some amount of effort into finding work that compares to the employment he or she lost. The employee’s duty to take reasonable steps in mitigating loss of employment, if unfulfilled, will result in a reduction of damages the employee is entitled to for wrongful dismissal.

These two main issues centring around the concept of reasonable steps of mitigation are, firstly, whether the employee took reasonable steps to mitigate his or her loss. If the answer is no, a second issue arises, namely, whether the employee would have found a comparable position during the notice period if he or she had taken reasonable steps. In this two-step process, it is therefore not enough that an employee failed to take reasonable steps. Although the employee’s job search in this ruling was criticized as being too narrow, this fact did not support the inference that the employee would have found comparable employment if they had widened their search.

In a similar case, an employee failed to mitigate based upon the fact that the employee was able to find employment within two months after initially delaying a job search for three months. The fact that the employee did in fact find employment served as proof that comparable employment was likely available during the three months in which she refused to look for work. In this ruling, the employee’s four-month delay in starting a job search was followed by a one-and-a-half period of unemployment. This ruling thus demonstrated that, despite her best efforts, comparable employment was not available in the job market.

Takeaway

The duty to mitigate is a crucial consideration for an employer that has been found liable for wrongful dismissal or constructive dismissal. After an employer has been determined to owe a former employee notice, proving a failure to mitigate is a good way to reduce the amount of compensation payable as a result.

This ruling demonstrates that the duty to mitigate loss of employment is not solely related to an employee’s efforts. While true that an employee who chooses not to put in the work to find work is in danger of failing to mitigate, such failure is not in and of itself sufficient. The duty to mitigate is designed in such a way that, when no comparable employment exists for an employee to find, the employee has no legal duty to seek it. An employer must find some means of showing that work was available. Naturally, an employer will not find a co-operative partner in the employee. As a result, employers are encouraged to think outside the box for ways to prove the availability of comparable employment. Doing so could reduce an employer’s owed compensation to a wrongfully or constructively dismissed employee significantly.