The Impact of the Employee Re-training During the Notice Period
The determination of whether or not a dismissed employee has taken reasonable steps to mitigate his or her damages is a question of fact. This is particularly true if the dismissed employee has returned to school or sought additional training after the dismissal rather than attempting to find a similar role to that from which they were dismissed. The issue before the court is whether it was reasonable for the dismissed employee to adopt remedial measures rather than actively seek new employment.
The Alberta Court of Appeal in Christianson v. North Hill News Inc.1 overturned the trial judge’s decision which had reduced the employee’s notice period from six months to two months because the dismissed employee had taken a six-month retraining course. The Court found that, under the circumstances, the dismissed employee had acted reasonably when she took a six-month retraining course. The dismissed employee quickly found a job after completing her training.
In the 2016 decision Schinnerl v. Kwantlen Polytechnic University2 the court found that the plaintiff had failed to mitigate her damages when she turned down a full-time job and, instead, accepted a part-time job so that she could continue her PhD studies. The judge noted that the plaintiff was entitled to choose not to take full-time employment but the cost of that choice did not lie with her former employer. The plaintiff’s entitlement to wrongful dismissal damages ended on the day she had the opportunity to start new full-time employment.
In another British Columbia decision, Koskinen v. Foremost Foods Ltd. (c.o.b. Extra Foods Ltd.,3 the court found it reasonable for the dismissed employee, who had been terminated from her employment as a grocery store manager after 14 years of employment, to enroll in a four-month course funded by the Canada Employment Centre in order to increase her employment options.
Similarly, in Kinsey v. SPX Canada Inc.4 the court held that it was reasonable for the dismissed employee, who had been terminated after 7 years of service, to enroll in a real estate course after her dismissal. The judge noted that the dismissed employee did so during difficult economic times when re-employment would not have been easy.
However, in Walsten v. Kinonjeoshtegon First Nation5 the court considered the case of two sisters who had been dismissed within months of starting fixed term contracts. Considering the first sister, the trial judge found that the employee had failed to take reasonable steps to mitigate her damages when she entered university after her dismissal to pursue a general arts degree. The dismissed employee provided no evidence as to how the general arts courses that she took would create job opportunities. She also had a track record of failing to complete her course and a poor academic record. The dismissed employee ultimately withdrew from the courses in which she had enrolled and did little to find employment. The only jobs that she could identify having applied for were a job as a teaching assistant (presumably while she was enrolled in university) and a job as a bridal consultant. The other dismissed employee quickly found new work but then quit after three months. Her only reason for quitting was that her “personal life just got in the way.” As a result, the trial judge reduced the damage awards for both plaintiffs by approximately 25% finding that the sisters failed to take reasonable steps to mitigate their damages.
- Christianson v. North Hill News Inc., 1993 ABCA 232; ↩
- Schinnerl v. Kwantlen Polytechnic University, 2016 BCSC 2026; ↩
- Koskinen v. Foremost Foods Ltd. (c.o.b. Extra Foods Ltd.), 1997 CanLII 4195 (B.C.S.C.); ↩
- Kinsey v. SPX Canada Inc., 1994 CanLII 2333 (B.C.S.C.); ↩
- Walsten v. Kinonjeoshtegon First Nation, 2009 MBQB 106; ↩