One of the biggest concerns for employers reorganizing in response to operational requirements is the potential for constructive dismissal claims by employees impacted by the changes.
A typical wrongful dismissal case (where cause is not an issue) generally involves two legal issues. First, how much reasonable notice of termination (or pay in lieu) should the employee have received based on the employee’s age, length of service, position, compensation and the availability of comparable employment. Second, did the employee mitigate his/her damages by finding alternative employment or failing to make reasonable efforts to do so during the notice period? Notably, a judge can decrease the notice period based on the employee’s unreasonable mitigation efforts.
Summary judgment has increasingly become a process used to litigate wrongful dismissal actions. It can be attractive as it allows the parties to avoid going through a more costly and time-consuming trial. However, the efficiency of this process raises other issues. Because parties can bring a summary judgment motion early on in the proceedings, a decision may be rendered prior to the expiry of the reasonable notice period at common law. This raises the question as to how to deal with the issue of mitigation.