What is your obligation? How can you “mitigate your losses”
If you’ve just lost your job or been fired, your first reactions may be shock, disbelief and then anger. Whatever the reason, getting fired is one of life’s most stressful experiences. It might also be difficult for you to think about next steps and what your obligations are towards finding employment.
This is where Mitigation comes in. It is your obligation to try to minimize the impact of an employer’s failure to provide appropriate notice. This means a terminated employee is required to make reasonable attempts at finding alternative employment. Mitigation is a term, which applies in all areas of the law, but it has an important part to play in the area of wrongful dismissal. It is important for an employee to keep in mind when deciding whether to refuse or accept an employer’s offer after being terminated.
WHAT IS CONSIDERED REASONABLE IN FINDING NEW EMPLOYMENT – that depends on a number of criteria and varies for each employee. There is no “one size fits all” type of scenario. An executive is not required to look for or accept a position as a janitor or take a huge cut in pay. You are unlikely to be judged harshly for refusing to undertake a countrywide search if the unique nature of the lost job means that there are few local opportunities. This is especially true if it would also mean uprooting a family with ties to the community. Each situation is determined based upon its own set of facts.
HOW MITIGATION MIGHT AFFECT NOTICE YOU ARE OFFERED – common law notice is set off by (or deducted from) the amount of the salary or other compensation earned as mitigation in a new job or other replacement sources of income such as earnings from a new business venture. There is no set off against statutory notice (or severance if applicable). For instance, if the statutory portion of notice is eight weeks and at common law you might be entitled to a total of four months of notice, unless you are fired for cause, you will receive the full eight weeks of notice without set off even if you find a job the next day. However, whatever you earn at that new job will be deducted from the common law portion of the notice.
WHY YOU SHOULD CARE – even if you have long service and the notice being offered is less than what is appropriate, it might be foolish to refuse it and fight for more if you are likely to find a comparable paying job (which will lower or eliminate your payment) within the notice period which is being offered.
While the onus is on the employer to prove that you would likely have found a job had you done a better job search, a judge may lower your notice entitlement if he/she feels that you didn’t try hard enough. If you fight it, remember you must show that you have tried hard to find a job and document it so your efforts to find other work will be taken into account when reviewing your legal obligation to mitigate damages.
As always, I recommend reviewing your options with a lawyer.
The materials provided on this site are for information purposes only. These materials constitute general information relating to areas of employment law familiar to employment lawyer, Shelley Brian Brown. They do NOT constitute legal advice or other professional advice and you may not rely on the contents of this website or blog as such.
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