It is wise for a dismissed employee to begin an active job search for new employment shortly after he or she has been dismissed. The job search should be documented. Starting an active job search immediately after dismissal will undercut any employer allegation that the dismissed employee has failed to mitigate his or her damages.
Courts will usually provide a dismissed employee with a reasonable period of time before expecting an active job search and will consider the surrounding circumstances when determining whether or not an employee has taken reasonable steps to mitigate her damages. Should the court find that the employee does not have a legitimate reason for delaying his or her job search, the court may reduce the notice period awarded to the employee.
In Walsten v. Kinonjeoshtegon First Nation1 the trial judge wrote that “the courts have tacitly acknowledged that many employees require a certain period of post-termination readjustment time before they can reasonably be expected to pursue re-employment strategies. See Cronk v. Canadian General Insurance Co., supra.”
Justice Burnyeat considered the case of a car salesman who was dismissed from his employment and who failed to obtain alternative employment within the 9 month notice period in Ata v. Carter Pontiac Buick Ltd.2 At trial, the employer provided evidence that there were numerous similar positions available at other dealerships during the notice period. Justice Burnyeat wrote at paragraph 46:
I am not satisfied that it is reasonable to assume that the day after an employee has gone through the trauma of being fired that he or she must immediately seek alternate employment to avoid the criticism that they are not mitigating their damages. Rather, I am satisfied that it is appropriate for a reasonable period of adjustment and recovery to be available to an employee whose employment has been terminated.
The dismissed employee was awarded full damages for the first 3 months of the notice period. For the remaining 6 months, the employee’s damages were reduced by 50% to reflect the employment income that should have been available to him if he had used reasonable efforts to attempt to obtain similar employment.
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- Walsten v. Kinonjeoshtegon First Nation, 2009 MBQB 106;
- Ata v. Carter Pontiac Buick Ltd., 2002 BCSC 531;