failure to mitigate

Are employees entitled to receive damages for variable compensation during the reasonable notice period?

April 2, 2019 Doug MacLeod, MacLeod Law Firm Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

Some employees receive a large percentage of their total remuneration in variable compensation. A much litigated issue is whether the employer is required to pay variable compensation to a terminated employee during the applicable notice period and if so how is this compensation calculated.

employment law, failure to mitigate, notice period for a terminated employee, shareholder bonus, variable compensation, variable compensation structure, wrongful dismissal

Refusing a 50 km commute not a failure to mitigate

October 17, 2016 Simon Heath, BA, MIR, LLB, Heath Law Employment/Labour Standards, Human Resources, Notice, Damages and Settlements, Payroll, Union Relations

In 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.

common law notice, constructively dismissed, employment law, failure to mitigate, Marsland v. City of Toronto, mitigate damages, wrongful dismissal

Motion for summary judgement raises questions about efficiency of pre-trial resolution

June 9, 2016 Simon Heath, BA, MIR, LLB, Heath Law Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

Employment lawyers will advise you that a motion for summary judgement can be expensive to lose. Not only does the company have to pay the judgement, the company will have to pay the costs of its own counsel and part of the costs of the employee’s counsel. Therefore, there is pressure on the company to offer a suitable severance package to negotiate a settlement rather than leave it to a court to decide with the cost consequences that follow.

common law notice, employment contract, employment law, failure to mitigate, negotiated settlement, not-for-cause termination, outplacement services, salary continuance, suitable severance package, summary judgement, termination, written contract, written termination clauses

Failure to mitigate reduces damages in Human Rights claim

November 5, 2014 Stringer LLP Employee Relations, Human Resources, Human Rights, Notice, Damages and Settlements, Payroll, Wages and Compensation

In the wake of the Divisional Court’s decision in the Hamilton-Wentworth District School Board v Fair, human rights damages have been a hot topic. As you may recall, the Human Rights Tribunal of Ontario awarded significant damages in that decision which included an award of back pay for a period of approximately 10 years.

duty to mitigate, efforts to find alternative employment, employment law, failure to mitigate, Hamilton-Wentworth District School Board v Fair, human rights damages, Li v University Health Network, minimal lost income damages, notice period, termination, wrongful dismissal litigation

Better the devil you know? employee’s obligation to accept an alternate position

April 22, 2014 Earl Altman Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Pensions and Benefits, Wages and Compensation

Ever since the Supreme Court of Canada decision in 2008 in a case Evans v. Teamsters Local Union, the courts have recognized the obligation of an employee, in certain circumstances, to accept an offer of alternate employment from their employer following dismissal. This has put many employees in the awkward position of determining whether or not the offer of employment is one that must be accepted based on the Evans’ reasoning. The difficulty faced by many employees’ counsel is the degree of difference in the position being offered, and whether such difference justifies the employee rejecting the offer of employment.

atmosphere of hostility, Bonus entitlement, breach of contract, change in compensation, comparable job, constructive dismissal, Dismissal, duty to mitigate, economic efficiency, embarrassment or humiliation, employee’s obligation to accept an alternate position, employee’s performance, employment law, Evans v. Teamsters Local Union, failure to mitigate, Farwell v. Citair Inc., HR Law, offer of employment, Purchasing Manager’s position, reasonable efforts to find a job, reporting requirements, salary and benefits, Supreme Court of Canada, termination, terminations, working conditions

Picky, picky: How selective can a dismissed employee be in mitigation efforts?

March 14, 2014 Earl Altman Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll, Wages and Compensation

When advising a wrongfully terminated employee as to her legal rights and obligations, I always point out that a wrongful dismissal claim is not like winning the lottery. While employers are obligated to provide reasonable notice of termination or payment in lieu of such notice, terminated employees must make “reasonable efforts” to find new employment. As is often the case, the devil is in the details. What must a dismissed employee do to meet her obligation to mitigate? What have courts determined to be reasonable steps? What conduct has been held to be unreasonable? From whose perspective will reasonableness be judged–the employers or the employees?

British Columbia Court of Appeal, compensation, dismissed employee, duty to mitigate, employee failed to take reasonable steps to find a job, employee’s mitigation choices, employee’s mitigation efforts, employment law, failure to mitigate, mitigation efforts, payment in lieu, reasonable notice of termination, refusal to accept a job offer, termination, terminations, trade or profession, wrongfully terminated employee

What is the impact of mental health issues on the duty to mitigate

February 19, 2014 Earl Altman Employee Relations, Employment/Labour Standards, HR Policies and Procedures, Human Resources, Notice, Damages and Settlements, Payroll

It has often been said that termination from employment is the capital punishment of employment law. While perhaps too extreme an analogy, there is no doubt that termination is an emotionally draining experience. The courts have grappled with the issue of plaintiffs in a wrongful dismissal claim who argue that the emotional upheaval of their dismissal resulted in an inability to look for replacement work for a period of time.

actively searching for work, appropriate period of notice, capital punishment, duty to mitigate, employee’s ability to find a replacement job., employee’s emotional distress, employment law, failure to mitigate, Managing Difficult Terminations, mental distress, mental health issues, termination, termination from employment, terminations, wrongful dismissal

When does a constructively dismissed employee have to remain in their employment?

December 10, 2012 Alison J. Bird Employment/Labour Standards, Human Resources, Payroll, Wages and Compensation

Since the Supreme Court of Canada’s decision in Evans v. Teamsters Local Union No. 31, [2008] 1 S.C.R. 661, there has been a great debate surrounding whether a constructively dismissed employee must remain in their employment with the dismissing employer in order to mitigate their damages. In that case, the Court found that in some circumstances, the duty to mitigate will require an employee to remain in their employment. However, an employee is not required to remain with the employer if he or she would be required to work in an atmosphere of hostility, embarrassment or humiliation.

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Is an employee’s resfusal to accept a settlement offer a failure to mitigate?

November 12, 2012 Alison J. Bird Employee Relations, Employment/Labour Standards, Human Resources

In AMEC Americas Limited v. MacWilliams, 2012 NBCA 46, the New Brunswick Court of Appeal held that an employer’s defence that an employee failed to mitigate his damages by refusing to accept its settlement offers had no merit. As leave to appeal the decision was recently refused by the Supreme Court of Canada, the current answer to our question (at least in New Brunswick) is “no”.

common law notice, damages, denial of liability, disputes and litigation, employee's legal entitlement, failure to mitigate, full and final release, New Brunswick, obilgation to pay damages, reasonable notice, settlement offer, Supreme Court of Canada, wrongful dismissal

Slaw: Employee constructively dismissed, but no damages awarded because of failure to mitigate

August 9, 2012 Yosie Saint-Cyr, LL.B. Managing Editor Employment/Labour Standards, Human Resources, Payroll, Wages and Compensation

The Ontario Superior Court of Justice just decided that although an employee was constructively dismissed when he was suddenly “laid off,” the employer did not owe the employee any damages because he failed to mitigate his loss.

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