In Drysdale v Panasonic Canada ( 2015 ONSC 6878) Mr Justice Lederman gave 22 months notice to a 58 year old shipper with 23 years service.
The Employer tried to attack the Plaintiffs’ mitigation efforts by producing at trial, for the first time, 380 job ads. The Court commented that of the 380 jobs, 348 either did not state a wage rate or the rate stated was $17/hour or less. The Plaintiff was making $28/hour or $60,000 with overtime plus a pension.
The Judge then made this comment about the Employer’s trial tactic of showing up with job openings for the first time at trial.
22 The defendant offered the plaintiff no assistance in searching out these job postings and therefore it does not lie readily in the defendant’s mouth to criticize the plaintiff afterwards for not pursuing these specific job opportunities. As stated by Taylor J. in Maxwell v. United Rentals of Canada Inc., 2015 ONSC 2580 at para. 40 “… if an employer intends to argue the failure to mitigate on the part of the former employee, it would be well advised to present evidence of assistance that was offered to the terminated employee during his or her job search.” Here, the defendant raised the issue of available job postings after the fact and only in the course of this litigation. Prudence would have dictated that the employer make this information available to the employee in a timely way to assist him in his transition.
What can an employer do to help the former employee find alternative employment and save themselves lots of money on notice?
1) Give positive reference letters, backed by oral references. If you have a “policy ” saying you cannot do this, then change the policy.
2) Provide relocation counselling.
3) Send relevant job leads to the plaintiff on a regular basis. Call other employers in your industry and try to find a place for your former employee.
4) Don’t allege just cause as a litigation tactic.
Only # 2 costs money, the rest is just being a mensch.
1,728 thoughts on “Employer Who Doesn’t Help Employee Find a Job Can’t Claim Failure to Mitigate:”