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Refusing a 50 km commute not a failure to mitigate

employee-commuteIn wrongful dismissal litigation, one of the key issues is always the dismissed employee’s duty to mitigate. When an employee is terminated or constructively dismissed, he or she has a positive obligation to minimize his or her damages by seeking out comparable, alternate employment. Anything the employee earns in the common law notice period is subtracted from what the company owes. An issue that often arises is whether or not it was reasonable for an employee to refuse exploring a potential new job because of the length of the commute.

In the case of Marsland v. City of Toronto 2015 ONSC 7598; appeal dismissed 2016 ONCA 551, the issue of the length of a commute was before a judge in a motion for summary judgement.

In this case, the court concluded that the plaintiff who was 56 years old and had over 25 years of service had been constructively dismissed when her employer, the City of Toronto, made fundamental and unilateral changes to her position. The plaintiff was awarded 26 months of common law notice.

The employer bears the onus of proving that an employee has failed to mitigate her damages.

In this case, the City of Toronto tried to argue that the Plaintiff failed to mitigate by refusing to explore a comparable job in East Gwillimbury which was more than 50 kms away from her residence. The Judge rejected this argument and held that it was reasonable that the plaintiff would not explore a job with a “significant daily commute”.

The City of Toronto appealed the decision on mitigation and specifically that the Plaintiff’s failure to consider employment outside of Toronto was unreasonable. The Ontario Court of Appeal rejected this argument and held that the Judge had not made any overriding error and that it was not unreasonable for the employee to reject a position based on the 50 km commute from her home.

This case is significant for a number of reasons. The GTA is becoming an integrated economic hub stretching from Hamilton to Oshawa. However, employees may now be able to argue that if commutes are too long, then they are not obligated to look for comparable jobs beyond a certain distance from their house, even if they have a vehicle and could do the commute. It will be interesting to see if other courts agree with this decision.

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Simon Heath

Employment Lawyer and principal at Heath Law, Employment Lawyers
Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more
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