Under Ontario employment law, a terminated employee is required to make reasonable and diligent effort to secure re-employment after a dismissal. In wrongful dismissal actions, damages may be reduced if such efforts are not proven. The is duty to seek re-employment relates to the employee’s duty to mitigate damages.
The employer’s liability to pay damages for wrongful dismissal during a notice period is reduced by any income the employee receives (or ought to have received) during the notice period.
The duty to seek re-employment may be further complicated if an employment contract has been signed which contains a restrictive covenant such as a non-competition agreement or non-solicitation agreement.
The enforceability of such agreements is often questionable, and legal advice is required from a qualified Toronto employment lawyer as to the effect, if any, of such provisions.
If a terminated employee does not seek a new position, a Court can impute income to the employee, based on the amount the Court believes the employee would have earned, had a reasonable job search been undertaken. A Court may on that basis reduce or limit the notice monies payable by the employer.
Reasonable re-employment options are not limited to job-search. In certain circumstances, returning to school or starting a new business have been held to be reasonable mitigation, as well. The test is whether reasonable, consistent and active ongoing steps have been taken to move toward a return to the workforce on a reasonable basis.
As a result, in wrongful dismissal cases, Plaintiffs are almost always required to show comprehensive evidence of their job search activity.
It is accordingly essential that complete records be maintained of all job-search activity following dismissal.
WISE LAW Recommends that you Maintain a Comprehensive Record of Your Job-Search:
- Maintain a log of all phone calls, emails, job applications and messages you send to prospective employers
- Maintain screenshots or printouts of all online job postings that you respond to and any messages you receive in response
- Keep copies of all advertisements answered
- Keep copies of all job offers you receive, even if you don’t accept them
- Be prepared to provide compelling reasons for turning down any job offer you receive
- Keep copies of all correspondence sent and received in connection with your job search, including attachments
- Maintain a contact record of networking efforts and events such as job fairs or meetings with recruiters you have attended
- Keeps receipts for all costs you incur in job-search activities, including postage costs, costs of any training sessions, outplacement services or vocational assessments undertaken.
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© Garry J. Wise and Wise Law Office, Toronto, Ontario, Canada. This information may not be reproduced without consent in writing.
