STACEY REGINALD BALL
Featured by as most frequently recommended employment lawyer.
Employees have a duty to take reasonable steps to mitigate his or her damages in the event of a wrongful dismissal
Fixed-Term Employment Agreement
This duty exists even though they are the innocent party in the equation. Any benefit gained from complying with this duty to mitigate will be deducted from the damages that the employer must pay. The employee only has a duty to take reasonable steps to mitigate damages. The standard for mitigation is “reasonableness”, not “perfection”. The duty is owed to themselves, meaning that the former employee is entitled to seek a position that matches their level of skill and expertise. They do not have to take a lower paying job, even if that would please their former employer by reducing the amount of damages owing. The onus is on the employer who claims the former employee has breached the duty to mitigate.
The employer must prove that the employee found or could have found similar employment reasonably suited to his or her abilities. It is a question of fact whether the employee acted reasonably, and each case is different. See Red Deer College v. Michaels (1975), 57 D.L.R. (3d) 386 (S.C.C.) and Tsakiris v. Deloitte & touch LLP (2013), 8 C.C.E.L. (4th) 210 (Ont. S.C.J.) for more reading on this concept. For example, the courts have held that the number of resumes an individual sends out is not determinative of satisfying the duty to mitigate. It may be unfair or humiliating to require an individual to endure more rejection when the chances of finding a new job are low.
Personal factors, such as job location and family attachments, may be relevant in determining whether it is reasonable to limit the geographic range of a search for alternate employment. An employee is not required to conduct a fruitless job search, such as where the individual knows there are no realistic prospects based on their age and industry, or if an employee is ill. Courts have also been understanding of the emotional shock that some individuals feel when they are terminated, and they may find a delay of two to three months reasonable before an individual starts looking for work, though there should be evidence of the emotional impact from the termination.
An employee in a fixed term contract may be terminated without cause before the contract term has expired. It is possible that a fixed-term employment agreement contains an enforceable termination clause, and that this termination clause would limit the employee’s reasonable notice. However, in the absence of an enforceable termination clause, the courts have ruled that the termination date is the end of the contract and therefore the employee should receive all salary owing under the fixed term contract. In such a case, the employee may not have a duty to mitigate their losses. Please note that the above information does not constitute legal advice. It is general information about the law. If you require legal advice with an employment issue, please contact the experts at Ball Professional Corporation.
FIXED TERM CONTRACT
Canadian Employment Law
Mr. Ball is author of the authoritative and definitive text Canadian Employment Law - published by Canada Law Book (a division of Thomson Reuters). The text is used and cited by lawyers, law schools and judges across Canada.
To order Mr. Ball's Canadian Employment Law please visit the Carswell Store by clicking here or on the button below.
- John Cunningham, Toronto, ON
- Todd Kemp, Oshawa, ON
- Lou T. Richmond Hill, ON
- James Yu, Toronto, ON
- Antoinette St. Angelo, V.P. & Director of Production Services, Toronto, ON