In Zoehner v. Algo Communication Products Ltd., 2023 BCSC 224 Justice Verhoevan had this to say about a 63 year old employee (and part owner of a family business) regarding his mitigation efforts:
1) He found that the employee had done nothing to find a comparable job as he was in full retirement mode.
2) However as the law also requires the defendant to show that if he had looked for a job he likely would have found one within the notice period, the Court found that the likelihood of this happening was basically zero for the following reasons:
[113] However, there was little likelihood that the plaintiff could have actually found reasonable alternative employment. As he noted, he was on the brink of retirement, and his professional skills were of limited scope, in that he had worked for a single employer for his entire career.
[114] An employee who has devoted a large part of his working life to one employer and whose knowledge and experience is tailored to the needs of that employer may be less marketable as an employee and may have more difficulty in obtaining alternative employment: Carey v. F. Drexel Co., [1974] 4 W.W.R. 492, 1974 CanLII 733 (B.C.S.C.).
[115] The plaintiff had health issues which limited his employability. He suffers from chronic low back pain with sciatica, caused by compressed discs in his lower back. He has limited tolerance for standing and walking. He is scheduled for vascular surgery. He takes medication, gabapentin, for his medical conditions. The medication causes fatigue and affects his mental alertness.
[116] It is quite unlikely that any employer would hire the plaintiff for a senior executive position paying anything like the salary he previously earned. Such jobs generally involve highly specialized services, with heavy demands and responsibilities. An older employee on the brink of retirement with significant health issues is not likely to obtain such employment.
Why then did the Judge reduce the notice period by 20%?
[117] However, given his retirement plans, it would have been reasonable for him to seek work at a lower salary, perhaps for a limited term. He might have been able to obtain some reasonable work, perhaps similar to the consulting work that he did, that might have brought in at least some income.
My Comments:
This is a BC case. In Ontario the law of mitigation is different on two points.
First, the employee is only obligated to look for comparable employment. They are never required to look for or accept lesser employment.
Second, even if they accept employment of a much lesser salary, that minimal income will not count as mitigation income that reduces the damage claim.
- Zero mitigation efforts reduces notice period by 20% - March 13, 2023
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- Employer loses on just cause and pays $50,000 in bad faith damages in part because of improper investigation - January 16, 2023
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