Mitigating Damages

What is an employee’s obligations upon termination to find a new job?

An employee who has been terminated is required to reasonably seek out alternate and comparable employment in a timely way.

 

What if I feel I am constructively dismissed or I am terminated but am later offered a job at the same company that terminated me?

The question occasionally arises as to whether that employee is required to work for the same employer who terminated the employment contract.  This issue comes up when dealing with constructive dismissal situations or situations where there is a subsequent opportunity with the same employer.

 

The Courts have determined that the following factors are relevant:

• • In the absence of conditions rendering the return to work unreasonable, an employee can be expected to mitigate damages by returning to work for the dismissing employer;
• • The question is whether it is reasonable to accept such an opportunity. If the salary offered is the same and the working conditions are not substantially different or the work is not demeaning and where the personal relationships involved are not acrimonious, the Courts have found that an employee should accept such a position;
• • The Courts will consider the history and nature of the employment and all other factors surrounding whether re-employment is reasonable;
• • An employee will not be obliged to accept employment by working or continue to work in an atmosphere of hostility, embarrassment or humiliation;
• • If an employee has been dismissed or has been required to change positions by virtue of legitimate business needs – rather than concerns about their performance, they will often be required to mitigate by maintaining this position or returning to the same employer.