Wrongful Dismissal - The Duty to Mitigate

Is your employer entitled to fire you?  In general, the answer is "yes."  If so, where does the expression "wrongful dismissal" come from?  A dismissal is wrongful when the employee is fired without cause and without enough advance notice.

After the courts have decided that a dismissal was "wrongful," they must decide on compensation for the former employee.  In considering compensation, the courts must also consider the employee's "duty to mitigate."  What is the "duty to mitigate?"  It is the requirement that the dismissed employee seek comparable alternative employment.  When the court makes a compensation award, it will deduct the amount the employee could have earned if they had diligently sought alternative employment after dismissal.

As a result of the duty to mitigate, in a wrongful dismissal case, the former employee must give evidence about their efforts to find alternative employment.  Sometimes, employers whose lawyers have told them about the duty to mitigate will offer to rehire the former employee.  When the former employee refuses to accept this offer, the former employer will tell the court that the employee has failed to meet their duty to mitigate.

As the former employee, are you required to accept an offer of employment from your former employer?  It depends on the circumstances but, in general, probably "not."  In the recent case of Fredrickson v. Newtech Dental Laboratory Inc., (2015 BCCA 357), the BC Court of Appeal gave two examples of circumstances where an employee was entitled to refuse an offer from the former employer.  First of all, the court held that the offer must be a "complete" offer.  In other words, if the employer did not offer full compensation for lost wages, then the offer would not be considered complete.  Secondly, the court looked at the conduct of the employer in this case and held that the employer had destroyed the mutual trust which is a fundamental part of the employment relationship and, on that basis, the employer could not reasonably expect the dismissed employee to return to the poisoned atmosphere of the former workplace.

A wrongful dismissal can be very hard on the employee.  The duty to mitigate does not make things any easier - but there are some limits on the duty to mitigate.

Article written by Centennial Law Corp. (Douglas E. Dent)