If you have brought, or are considering bringing, a claim against your employer for wrongful dismissal, you may believe that you can sit back and watch daytime TV, waiting to recover your damages from the employer. That is not the case: you have a duty to “mitigate” your damages.
Mitigating or reducing your damages by seeking alternate work
Mitigation means reducing the damages you have sustained by reason of the wrongful dismissal. Specifically, it means looking hard for new gainful employment. The failure to properly mitigate your damages can result in your reasonable notice period damages being reduced.
Tips for mitigating your wrongful dismissal damages
- Look for reasonably comparable employment: You do not need to accept any job on offer. Your duty is to make reasonable efforts to find comparable employment.
- Keep records: It is important that you keep a record of your efforts, both in a hard copy and electronic file. You should keep track of everything, including on-line searches, interviews, letters sent out and received, coffee and lunch meetings, etc. At some point you may well be asked by a lawyer for your former employer what you have done to mitigate your damages. These steps will ensure that have a complete answer.
- Keep track of any expenses incurred: As part of mitigation, you may incur some expenses—for example, to obtain training or to start a small business. It may be possible to claim certain of these costs from your former employer.
Mitigating by continuing to work for the employer
Issues of proper mitigation also arise in constructive dismissal cases. If, for example, the employer significantly reduces your salary or demotes you to a lower position, your employer may claim that the most effective form of mitigation consists of remaining in your former lower position for the length of the reasonable notice period. When an employee is entitled to walk away in a constructive dismissal matter is a difficult one, requiring specialized advice from an employment lawyer.
We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for wrongful dismissal.
[The following information applies to non-unionized employees. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]