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THE EMPLOYEE’S DUTY TO MITIGATE BY SEEKING EMPLOYMENT
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.
WISELAW 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.