Discharged employees must prove lack of comparable jobs

November 13, 2016 0 COMMENTS

by Keri Bennett

Where an employee has been dismissed from a job without sufficient notice, he or she may look to his or her former employer for compensation for any losses suffered. However, the employee has a corresponding duty to try to limit any such losses by looking for comparable employment. A failure to act reasonably in this regard could have a significant impact on any claim the employee might have against the employer.

Not surprisingly given the state of the economy and the unemployment rate, dismissed employees often claim that there are no comparable jobs available and hence the reason they have not managed to secure other employment within the notice period. In Munoz v. Sierra Systems Group Inc., 2016 BCCA 140, the Court of Appeal for British Columbia ruled that where this argument is advanced, it is up to the employee to prove it.

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Damages for wrongful dismissal: Who must prove what?

June 05, 2016 0 COMMENTS

by Keri Bennett

As noted in past articles here, Canadian employees can sue for lack of adequate notice of termination. Fired employees seeking damages for inadequate notice have a corresponding duty to mitigate or minimize any resulting losses. If other work is available, their losses may be minimal. Employees frequently claim a lack of available work. But who must prove what?

In a recent decision, the British Columbia Court of Appeal ruled that where lack of work is claimed, the employee must prove it. It is not up to the employer to prove the opposite. read more…

How ‘come back to work’ doesn’t always work: offers of re-employment to former employees

October 18, 2015 0 COMMENTS

by David McDonald

In Canada, the Court of Appeal for British Columbia recently issued a decision narrowing the possibility for employers to use re-employment offers to support an argument that an estranged employee has failed to mitigate damages by refusing to come back to work. read more…

Clear offer of employment needed to argue mitigation

April 27, 2014 0 COMMENTS

By Katherine Pollock

Want to change a Canadian employee’s terms or conditions of employment? It’s not as easy as it once was.

Depending on the nature of the change, it may amount to constructive dismissal. If it does amount to constructive dismissal, simply providing notice of the change may not be sufficient—as the Court of Appeal taught us in Wronko v. Western Inventory Service Ltd. To make matters worse, contrary to what was once expected, an employee may not even need to quit to sue for constructive dismissal. read more…

Even more mysteries of mitigation

January 20, 2013 1 COMMENTS

By Michel Bellemare

Last fall, we reported on the mysteries of mitigation. Those articles (“When do employees have a duty to mitigate termination claim?” and “More mysteries of mitigation”) reported on the Ontario Court of Appeal’s decision in Bowes v. Goss Power Products Ltd. that confirmed that the duty to mitigate doesn’t necessarily apply where employment contracts contain specific termination payments and the employment relationship is terminated without cause. read more…