Wrongful Dismissal Claims: The Duty to Mitigate

Mitigation

When suing your employer for wrongful dismissal, you must make “reasonable efforts” to obtain re-employment to a comparable role. Failing to do so can have serious consequences for your wrongful dismissal claim. 

This article covers the basic facts about the duty to mitigate that every employee should be aware of going into a wrongful dismissal claim.

When do I need to start looking for other work?

The answers to this question depends on a number of factors, but generally, an employment law firm will recommend that you start looking for work no later than your notice and severance period under applicable employment standards legislation. For instance, if you are entitled to 8 weeks of notice and 10 weeks of severance under the Ontario Employment Standards Act, you should have started looking for work within 18 weeks of your termination date.

What should I be doing?

There are other ways to look for work than sending out job applications. Other activities that could be considered part of your job search might include:

  • Updating your resume
  • Looking through job posting boards (such as indeed.com or Linkedin)
  • Networking activities, like getting coffee with industry colleagues
  • Speaking to a career counsellor

What efforts are considered “reasonable”?

That depends on the circumstances. For instance, if you have a disability, you have no duty to apply for jobs which you medically cannot perform. Generally, your efforts do not need to be perfect, only “reasonable.” As a rule of thumb, disability lawyers and employment lawyers recommend sending out an average of one job application per week – but that won’t be practical in some cases, and it won’t be enough in others.

What roles are “comparable”?

Roles with similar pay, duties, responsibilities, and in the same general location are considered comparable. You do not have to accept work that is much different or lower-paying than the job you were dismissed from. By the same token, you should not restrict your job search to better jobs, jobs in different industries, or jobs requiring different skill sets. 

How do I prove that I am making “reasonable efforts”?

It is your responsibility to document your own job search activities. Most employment lawyers recommend keeping a journal of your activities. If you apply to jobs online, you will typically receive an e-mail confirming your application – we recommend you keep that as well. 

What happens if I cannot demonstrate reasonable efforts to mitigate?

If you fail to demonstrate reasonable efforts to mitigate, you will negatively impact your wrongful dismissal case, typically by somewhere in the range of 10%-50% of your entitlement. All advice that we provide to you is contingent on the assumption that you will make reasonable efforts to mitigate.

What happens if I find another job?

If you earn money from a replacement job during your claimed notice period, those earnings (known as your “mitigation earnings”) will be deducted from your damages for wrongful dismissal. For instance, if you are entitled to 12 months’ reasonable notice, and you start a replacement job earning the same pay 8 months after your termination, your entitlement will be limited to 8 months’ pay in lieu of notice. 

Note, however, that your mitigation earnings cannot reduce your entitlement to notice and/or severance pay under employment standards legislation.

How does mitigation impact a settlement?

Your duty to mitigate and the consequences of re-employment can be a good reason to settle your claim early, thereby removing the uncertainty and risk. Mitigation is a kind of “X-factor” in wrongful dismissal cases that can quickly (and substantially) change the value of a claim.

If you have been terminated, laid-off or severed from your job contact the employment lawyers at Share Lawyers. Our experienced team of Employment Law lawyers can help. We offer free consultations and there are no fees unless we win your case. Find out if you have an Employment Case!

 

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