If you’re fired, and you’re thinking of suing, there is something you have to do. And if you don’t do this, the court can reduce your monetary damages or reduce the amount to which you are entitled. So, what is it that you have to do? You have what’s called “the duty to mitigate”. You need to be aware that you have a duty to mitigate your losses – which means you have to look for a new job.
For those who don’t know me, I’m Sebastien Anderson, founder of Labour Rights Law. We are the go to virtual law firm providing legal advice to you in the comfort of your own home about employment, labour, and human rights law. This is all that we do. We do it well and we love what we do!
Today I’m going to talk about the duty to mitigate. Some of you are probably thinking: I’m the one that got fired, why do I have to do anything? If you are claiming damages for wrongful dismissal, your previous employer’s most common defense is that you failed to mitigate. Your former employer will try to prove that you did not do everything that is reasonable to look for a new job to make up for the income you lost.
If your former employer succeeds, the Court may either:
– Deny you your monetary damages for wrongful dismissal; or
– reduce your monetary damages because you failed to mitigate.
So what steps should you take to mitigate your loss? First, apply for EI in a timely manner and, if your EI claim is denied, appeal. You are responsible to be proactive and search for alternative comparable employment. Now, this doesn’t mean you have to take any job that comes along. You should be looking for new work that is similar in status, hours, and pay to your previous employment. However, the longer that you’re unemployed may require you to expand the scope of your search for future employment.
It is also important to document your searches for alternative, comparable employment as thoroughly as possible. The courts require you to show evidence of your search for employment. We recommend keeping a journal or record of all online job applications you complete, resumes you deliver, interviews you attend, or recruitment agencies you speak with. Keep track of all prospective employers you have contacted. Keep copies of job advertisements, your application, the dates you attend interviews, etc.
If you find alternative comparable employment, it’s also good to keep a record of all income you have received during the reasonable notice period, including income received through Employment Insurance. Other ways that count as mitigating damages could include earning income through your own business initiatives and self-employment. But you must note that re-education, re-training, or pursuing an entirely new career path may be an inadequate means to relieve your duty to mitigate.
Lastly, like many things in law, the test for mitigation is based on what is reasonable. This means that the extent of your duty to mitigate varies on a case-to-case basis and depends on individual circumstances. But most likely, the Courts take into account:
– Whether your employer offered you continued employment in another position;
– your health;
– the availability of similar employment;
– the specialized nature of your skills and knowledge;
– the size of your community;
– whether you should accept a position with less pay or reduced hours; or
– whether you are required to move to find alternative employment.
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