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You've Been Fired - To Sue or Not to Sue

· Employment Law

Should you accept your employers’ settlement offer or ask for more?

You have worked for this employer for twelve years. Your employment standards legislation entitles you to eight weeks of notice. Your employer offers you five months (almost 21 weeks) if you sign a release. Your lawyer tells you that you are likely to get 9 to 12 months if you engage their services. Accepting the offer and signing the release will get you the five months but you can’t ask for more. What should you do? Good question and the answer is – it depends.

 

If you don’t accept the offer, the law requires that you make reasonable efforts to mitigate your damages. What is mitigation?

It is minimizing the effects of the breach caused by the party at fault. Since an employer is required to pay appropriate notice they are in breach if they don’t. In employment law mitigation means doing a legitimate and reasonable job search. Whatever you earn once you land a new job would be deducted from whatever your lawyer might get you. This doesn’t include statutory notice owing by the employer. That is not subject to deduction. If you get a job shortly after your termination and it pays you what you were earning before, you are entitled to nothing more than what the employment standards legislation mandates. Now that original offer looks pretty good and you wish you had accepted it!

 

What a dilemma! So much depends on how quickly you might find something new. Sadly no one has a crystal ball. Here are some considerations:

  1. Statistics – look at statistics relating to unemployment in your industry. The higher the rate the longer it may take.
  2. Transferability of skills – a receptionist can work almost anywhere not so a chemical or electrical engineer. The more specific and unique the expertise, the longer it is likely to take.
  3. Salary level – the higher the expectations the longer it may take. You are allowed to try to replace your previous salary. If it’s high, it may take longer. If you accept something lower you are entitled to the difference between the old and the new.
  4. Upgrading skills/Returning to School – this depends on how reasonable this is in the circumstances. Your previous employer is not required to subsidize your education. However if technology has changed and you can’t find a job without it, it may be acceptable. I suggest to my clients that if they go back to school they should still do a job search
  5. Employer’s burden of proof – after you establish you have looked, the employer has to prove that had you done a better job search you would have found a job. That is not easy to do, especially if you have kept a written record of a reasonable and legitimate search.
  6. Amount at risk – if the offer is only a month more than the statutory minimum and you might get a lot more, it is probably worth the risk.
DISCLAIMER:
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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