In Dengedza v CIBC ( YM2707-10905) Adjudicator Montieth in a CLC Unjust Dismissal complaint had to determine whether or not a former senior investigator with the Bank was entitled to not have his mitigation earnings affect his 14 month notice award.
In his job at the Bank, the Complainant earned $62,379 for presumably a 40 hour work week. After his dismissal he worked 60 hours a week as an UBER driver and made $600 a week or $31,200/ year. This works out to $10/hour as opposed to the $30/hour that he was making at the Bank.
The Adjudicator then applied the test in Brake v PJ-M2R Restaurant ( 2017 ONCA 402) which stands for the proposition that post termination income that is “minimal, trivial or inconsequential ” should not be considered as mitigation earnings.
Even though the UBER income was 1/3 of his Bank income, the Adjudicator found that these amounts were sufficently large enough to be characterized as amounts received in mitigation of loss.
My Comments :
I think the Adjudicator approached this analysis incorrectly.
He seemed to look at the weekly earnings without regard to the hourly rate. Sure, the Plaintiff earned about 50% of his former income on a weekly basis but that is only because he worked 50% longer every week.
Moreover, as the Complainant was making $4.00 less than the ESA minimum wage driving for UBER, it seems somewhat inappropriate to find that these UBER earnings did not qualify as ” minimal and trivial “.
In other words the comparison should be based on the hourly rate, not on the weekly income. Effectively the Complainant was working 1/3 of his former rate . No Court would require an employee to mitigate his losses by taking a job at 1/3 of his previous rate, especially when that rate itself was below the minimum wage .
In effect the Complainant was punished for taking the crappy UBER job, and the Bank got a windfall because its former employee needed to eat and put a roof over his head.
Although there is no reference to this in the decision, it seems likely that as the Bank alleged just cause, the Complainant probably did not get EI. Had he received EI, that amount would not have reduced his damage award, although in certain circumstances he may have had to repay some or all of it to the Government.