The Obligation to Accept Re-Employment with the Former Employer

The Supreme Court of Canada held in its 2008 decision Evans v. Teamsters Local Union No. 31.1 that dismissed employees may be obliged to return to work for their former employer in order to mitigate the damages they suffered as a result of their dismissal.2 Since Evan, various decisions of provincial appellate courts have interpreted Evans very narrowly, limiting the circumstances when a dismissed employee will be expected to accept re-employment in order to mitigate his or her damages.

In Evans, the plaintiff had been dismissed without cause after being employed as a business agent for the Teamsters union for 23 years. Immediately after the plaintiff’s termination, the parties began negotiating the plaintiff’s notice period. The plaintiff’s position was that he was owed 24 months’ pay in lieu of reasonable notice. No agreement was reached but the union continued to pay the plaintiff’s salary and benefits.

Four months after being terminated the plaintiff received a letter from the union’s legal counsel requesting that he “return to his employment … to serve out the balance of his notice period of 24 months” and stating that, if he refused to return, the union would “treat that refusal as just cause, and formally terminate him without notice”. The plaintiff indicated he would return to work only if the Teamsters immediately rescinded its termination letter. The Teamsters refused and took the position that the plaintiff had failed to mitigate his losses by refusing to return to work.

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