Ms. Beverley Hettrick was hired by her employer in 1996. She worked as a receptionist, bookkeeper and office manager and earned approximately $44,200 per annum and received an annual bonus of $2,600.

In September 2015, Ms. Hettrick began a stress-related medical leave. She had a doctor’s note identifying her as being “not presently well enough to return to work”, and that the date of her return to work was “indefinite”. The employer had expected Ms. Hettrick to provide them with this letter in October 2015, but the note was never delivered. Ms. Hettrick claimed that her mental state at the time was the cause.

In 2017, two years later, Ms. Hettrick announced that she was prepared to return to work. However, she received a letter from her employer explaining that because they had not received the doctor’s note as expected, the employer was taking the position that she had abandoned her employment. This case provides an interesting overview of the issue of job abandonment. It further comments on the effect of old age on reasonable notice entitlements. Finally, this case extends some support to older employees by finding that they may owe no duty to mitigate.

Disposing of the Abandonment Issue

Ms. Hettrick took the position that she never abandoned her position with the employer. When she requested leave, she explicitly communicated her intention to return to work when able.
The employer, on the other hand, relied on the following test in their efforts to establish that she had indeed abandoned her position:

“… do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract”

Ms. Hettrick had not provided her doctor’s note as required and subsequently did not communicate with the employer for the following two years. This, the employer believed, demonstrated a clear and unequivocal indication of her intention to no longer be bound by the employment contract. Unfortunately for the employer, the trial judge disagreed with their version of the facts. Although they may have expected to receive a doctor’s note, there was never any explicit mention of it being a requirement.

Furthermore, according to Ms. Hettrick, her failure to communicate during her medical absence did not amount to a clear and unequivocal indication of her intention to abandon her employment. If there is doubt, the employer had an obligation to clarify with her. The trial judge concluded, on the evidence, that Ms. Hettrick never abandoned her position. As there was no job abandonment, Ms. Hettrick was entitled to reasonable notice. That was the next issue the trial judge had to decide.

The Influence of Age on Reasonable Notice

Determining reasonable notice depends on a number of factors, one of which is the age of the employee. Where the employee is of an older age, this typically lends itself to a lengthier notice period. According to Justice La Forest of the Supreme Court of Canada, “Barring specific skills, it is generally known that persons over 45 have more difficulty finding work than others.” This accentuated difficulty in finding alternative employment justifies granting older employees a lengthier notice period.

Ms. Hettrick was 73 years old when the termination of her employment was communicated to her. She had worked with the defendant employer for at least 19 years. Although she did not work in a managerial position, the trial judge felt that her age and length of service justified awarding her 18 months’ reasonable notice.

The Influence of Age on Mitigation

Generally, dismissed employees owe a duty to mitigate their losses by making efforts to find new employment. However, this decision would alleviate some of that pressure on older dismissed employees. The trial judge found that Ms. Hettrick, who was 73 years old at the time of her termination, owed no duty to mitigate. Therefore, her wrongful dismissal damages could not be reduced as a consequence of failing to make mitigation efforts.

This case demonstrates that although dismissed employees have a general duty to mitigate, judges retain some discretion to determine the extent of mitigation required. In this case, given the employee’s age, no mitigation was required. Once a dismissed employee is of significantly senior age, their prospects of finding work became far more limited. The trial judge was obviously aware of that and adopted a very pragmatic approach to mitigation.