Month: May 2025

Rejection of Offer of Alternative Employment Made before But Not After Termination Is Failure to Mitigate

In Brown v General Electric Canada ( 2025 MBCA 37 ) the Court had a situation where, as a result of a merger , the employee was offered a comparable  job with the new company. The Plaintiff refused the offer. The Plaintiff was then terminated. The new company did not renew the offer which was previously rejected.

The Court found that this refusal constituted a failure to mitigate .

This is what they said :

(c)           The judge discounted the significance of the timing of the Wabtec offer occurring before the termination because he drew an inference on the evidence that Wabtec would have re‑extended its offer to the plaintiff after the termination if there was any suggestion the plaintiff changed his mind, as Wabtec wanted the plaintiff to continue in his employment and took no steps to fill the position (see Brown at paras 55-56).

[36]      While the timing of a new offer of employment may be significant in the Evans analysis as to whether an employer can prove a failure by an employee to reasonably mitigate their loss, the factual context of whether reasonable steps have been taken to attempt to mitigate a loss is important (see 2438667 Manitoba Ltd v Husky Oil Limited, 2007 MBCA 77 at 17). Here there is an evidentiary basis to the judge’s finding that the precise timing of the offer of continued employment to the employee was not material to the question of mitigation, unlike the situation in cases such as Farwell v Citair, Inc (General Coach Canada), 2014 ONCA 177 at paras 20‑21 (see also Hickey v Christie & Walther Communications Limited, 2020 ONSC 7214 at para 81).

If you would like a copy of this case, then email me at barry@barryfisher.ca

If you like to book a mediation, go to www.barryfisher.ca

For access to the Wrongful Dismissal Database, go to www.wddonline.ca

 

Another American Based Termination Clause Bites the Dust :

In Boyle v. Salesforce.com, 2025 ONSC 2580 Justice Brownstone was faced with the following Termination Clause:

6 (b) Cause

The Company has the right, at any time and without notice (or pay in lieu), to terminate your employment under this Agreement for Cause. In the event that you are terminated for Cause, the Company’s obligation shall be limited solely to the payment of any portion of the Base Salary, and vacation pay, if any, that shall have been accrued by you prior to the date of termination.

Cause is defined in schedule A of the agreement as “any act or omission by you that would in law permit the Company to, without notice or payment in lieu of notice, terminate your employment.”

The company is regulated by different local laws where it operates globally. If there is a conflict in these laws, you should consult the Company’s legal department to resolve the conflict appropriately. In general, local laws will apply.

Except for certain non-U.S. jurisdictions, the Company’s employment relationship with all of its employees is one of employment “at will,” which means that employment may be terminated by either the employee or the Company at anytime, with or without cause. If you are located outside of the U.S. and have an employment agreement, the terms of those agreements will prevail if there is any conflict with the policies in this handbook. However, all other policies will apply.

The policies in the Global Employee Handbook are not a contract and that my employment is “at will.” This means that the Company or I can end my employment at any time with or without cause or advance notice.

The Judge found that this provision was illegal :

25]        In my view, applying the governing principles to this contract clearly results in the unenforceability of the termination provisions. There is no practical way that an employee in Ontario could be aware, when signing the contract, of the terms that would govern his termination. The ambiguity contained in the documentation, all of which Mr. Boyle was required to sign prior to commencing employment, is explained by Salesforce’s choice to use one contract for employees in many jurisdictions. Salesforce repeatedly claims to be able to terminate employment at will. It then says that this provision will not apply in certain jurisdictions outside of the U.S. If the employee is uncertain, he should consult the Company’s legal department. It is impractical to expect a potential employee, who has not yet started employment, to consult the future employer’s lawyer before signing an employment agreement to understand what kind of misconduct, if any, is cause for termination.

26]        I therefore find the provision is not compliant with the ESA, or at least ambiguous as to whether it is complaint, and is therefore unenforceable. Mr. Boyle is entitled to payment in lieu of reasonable notice.

My Comments :

This case illustrates the importance of designing specific termination clauses for each jurisdiction in which an employee resides and works. One size does not fit all. Especially Ontario.

If you like a copy of this case, email me at barry@barryfisher.ca

If you like to book a mediation go to www.barryfisher.ca

If you want access to the Wrongful Dismissal Database, go to www.wddonline.ca