Refusing a Return to Work after Layoff Found to be a Complete Failure to Mitigate:

In Blomme v. Princeton Standard Pellet Corporation, 2023 BCSC 652, Justice Mac Naughton had a situation involving a 64 year old Plant Supervisor with 20 years service in a small town who was initially laid off due to COVID on April 4, 2020 with an unexpected date of recall. She accepted the layoff at that time and did not claim constructive dismissal. She had never been laid off before .

The Plaintiff met with her boss on July 2 and expressed her anger that a more junior supervisor had been recalled but not her.

They met again on August 6 at which time the boss told her that they would extend her benefit coverage to December 31 and then if she was not recalled by that date, they would pay her her 8 weeks termination pay under the ESA.

On October 1 2020 the Plaintiff sent a demand letter from a lawyer claiming that she had been wrongfully dismissed as of August 30 as this was the end of the ESA temporary layoff period and asked that all responses be directed to him.

Rather than respond to the Plaintiff’s lawyer, the boss continued to communicate directly with the Plaintiff asking her if she wanted to return to her old job. Again her  lawyer directed that all communication be directed to him .

The boss again ignored the lawyer and told the Plaintiff that she could return November 3 to her regular job.

On October 30, the Defendant’s lawyer sent a letter to the Plaintiff’s lawyer and confirmed that she was owed 8 weeks pay and repeated the offer of the return to work on November 3.

That offer was not accepted .

The Judge found the following :

  1. The Judge found that the Defendant did not understand that as of August 30 the Plaintiff was deemed to be terminated under the ESA until they got the demand letter of October 1. The Judge found that the employer never intended to terminate her employment.
  2. The Judge  nothing wrong with the Defendant ignoring the Plaintiff’s lawyer letter to direct all comments to him not his client.
  3. The Defendant always intended to recall the Plaintiff, the only issue was the timing .
  4. Pursuant to the ESA, her employment was terminated on August 30 and the ESA termination pay of 8 weeks was owing. This was also her termination date under the common law.
  5. The reasonable notice period was between 15 and 16 months.

The real issue was whether or not the Plaintiff failed to mitigate her damages by refusing the offer returning to work on November 3 and to receive 8 weeks termination pay.

This is what the Judge said on this issue :

[95] Reframed for the circumstances in this case, the issue is whether Ms. Blomme, who was terminated by operation of statute after a temporary layoff that she initially agreed to, and who by October 1, 2020, took the position that she had been terminated, was required to mitigate by returning to work for Princeton in the same job as she had before the termination. Ms. Blomme’s circumstances are far-removed from a termination based on concerns about her performance. There was nothing personal about the decision to lay off Ms. Blomme, and I have accepted that Princeton had a legitimate reason for deciding to recall Mr. Mills before her. Even if Princeton was wrong in that assessment, it was not a decision made with the intent to humiliate Ms. Blomme.

[96] In this case, Ms. Blomme was not singled out for layoff. She was one of a number of management and union staff at Princeton who were laid off as a result of the unprecedent global pandemic faced by many employers.

[97] In the absence of conditions that would render her return to work unreasonable, on an objective basis, Ms. Blomme was expected to mitigate her damages by returning to work for Princeton. A reasonable person would be expected to do so.

[112] I conclude that, in the circumstances of this case, a reasonable person in Ms. Blomme’s position would have accepted Princeton’s offer. Although the specific terms of her re-employment were not set out in Mr. White’s October 8, 23, and 26 emails, it was incumbent on her to at least explore the option of returning to work. Ms. Blomme was being asked to return to the same position, salary, and benefits, which had never been cut off: see e.g. Davies at para. 43. There was no evidence to support that she would be returning to an atmosphere of hostility, embarrassment, orn humiliation. There was no evidence that either Mr. White or Mr. Andrews bore Ms. Blomme any animus. Ms. Blomme’s mistrust of Mr. White appears to have been an unfortunate result of their miscommunication and misunderstanding.

[113] In any event, on October 26, 2020, Mr. White wrote to Ms. Blomme, suggesting a return to work as soon as November 3, 2020, on her regular shift. Again, Ms. Blomme did not respond.

[115] Even if Princeton’s decision to offer Ms. Blomme the option of returning to work was triggered by the Demand Letter and its wish to avoid litigation, it was an offer she should have considered: see e.g., Hooge at para. 89. Her failure to do so resulted in a failure to mitigate.

[116] The layoff occurred in the context of a global pandemic during which many employees were laid off, including many others at Princeton. There was a reasonable explanation for why Ms. Blomme was not recalled when other employees were.

[117] Alternatively, Ms. Blomme should have accepted Princeton’s offer of eight weeks’ pay in lieu of notice and re-employment set out in its letter dated October 30, 2020.

[118] Had Ms. Blomme returned to work as offered, and based on a termination date of October 1, 2020, she would have been made whole.

Thus her entire claim was dismissed.

My Comments:

This case illustrates the extreme risk that Plaintiffs take when they refuse an offer to return to work. As long as the offer is not tied to a release and the employer offers to pay any losses up to the date of the return to work date, there is a real chance that the Plaintiff’s claim will fail .

In this case, the Plaintiff only claimed that the dismissal took place at the end of the ESA temporary layoff period. The outcome may have been quite different had she claimed that her dismissal took place either  at the time of  the original layoff or at least when she expressed her anger at not being recalled in July.

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