In a CLC unjust dismissal case ” Nieminen v FedEx” ( # YM2707-11440 or 2019 CarswellNat 3722) Adjudicator Skratek had a situation where a courier was accused of stealing money from a delivery. The Adjudicator found that he was not guilty of the theft and that the that FedEx had conducted a unfair investigation. He was reinstated with full back pay and full legal fees.
His spouse was on maternity leave at the time of the termination, and as a result of her husband’s termination, she was required to return to her job much earlier than she planned . This caused great disruption to the family, including the mother’s breast feeding plans.
This is what the adjudicator said on this issue :
78 Consideration was also given to the fact that the flawed and inherently unfair investigation that led to Mr. Nieminen’s termination had the direct result of forcing his wife to prematurely end her maternity leave. The Respondent claims that the decision was a choice made by Mr. Nieminen and his wife and that their decision was of no consequence other than to serve as a reason to consider the time that Mr. Nieminen spent on parental leave as a period in which he did not fulfill his obligation to mitigate his lost wages. That claim is without merit. Mr. Nieminen and his wife were suddenly placed in a very difficult position. He had lost his job. His wife was on maternity leave bringing home considerably less income than she would have received from her regular job. The family was disrupted and had to make decisions quickly to ensure that they could financially survive the disruption. The decision to have his wife end her maternity leave several months early disrupted the planned care for their newborn. As he testified, his wife had to return home daily to breastfeed their newborn. He further testified that his wife’s mother had recently passed away compounding the stress on his wife. There were also discussions regarding whether or not they should keep their house. Money was borrowed from his parents to help with child care. The efforts of Mr. Nieminen and his family must not be dismissed as being a choice that they made. It was a choice that was forced on them by the unjust dismissal that resulted from a flawed and unfair investigation into the alleged misconduct by Mr. Nieminen.
Note that this issue arose in part because the Employer said that the Plaintiff’s decision to stay home with the newborn baby was a failure to mitigate his damages.
Boy did that argument backfire!
As tempting as it may well be to make every legal argument possible ( because that is what they taught us in law school ) this case shows that what we learnt in school often does not play out well in the real world. Judgement and discretion are also attributes that matter.