Duty to Mitigate Overview
Once dismissed, an employee assumes the duty to mitigate. This means they are expected to minimize their losses by making reasonable attempts to find alternative employment. The entire purpose of granting employees a reasonable notice of termination and notice period is to enable them to find new employment. It is only reasonable, therefore, to expect that they use their notice period actually searching for new employment.
Importantly, the employee is not expected to accept just any job. A dismissed employee is under no obligation to accept a lower paying job. An employee is instead expected only to apply for jobs that are comparable to the one they were terminated from. Comparability depends on a number of factors including salary, hours of work, responsibilities, and distance from home, among others.
Failure to mitigate might entitle an employer to a reduction of the damages they are ordered to pay. The employer has the burden of showing that the employee did not make reasonable efforts to mitigate their losses. This is no easy task. They must show that the employee’s efforts were unreasonable in all aspects and, subsequently, that the employee would have secured a comparable position had they acted reasonably.
How to Meet Your Duty to Mitigate
It is important that a dismissed employee has some way of showing that they did make reasonable efforts to mitigate. Otherwise, they may see their entitlements reduced.
Thankfully, it is not difficult to meet this duty. The standard is reasonableness, not perfection. You do not need to begin your job search immediately. You do not need to be submitting applications all day, every day. As previously mentioned, the employee does not need to accept any job offer they might receive. If the employee’s field is highly specialized and therefore presents limited job opportunities, that employee does not need to search as extensively. In some cases, a few inquiries are sufficient. It is always a question of fact on a case-by-case basis whether or not the employee has made reasonable efforts to secure comparable alternative employment.
The best way to ensure that an employee meets their duty to mitigate is to keep records of all their efforts to find alternative employment. This might include time spent on networking or browsing employment websites such as Indeed. An employee should keep track of every job application they send out and to whom. If there is a job posting available but it offers employment that is not comparable to the employee’s previous position, this should also be noted. If the employee is invited for an interview, this should be recorded. Whether a job offer is received or not must also be recorded.
At Ball Professional Corporation, we provide our clients with a pre-built template for use in their mitigation efforts. Working with this template and completing it with the details of your job search will assist us in negotiating the best outcome for you in your particular case.