After a termination or layoff, the concept of mitigation becomes a central factor in employment law, especially in Alberta and British Columbia. It significantly influences the results of wrongful dismissal claims.
For employees, mitigation demands a reasonable effort to find a new, comparable job. This means looking for a role similar to their previous one in terms of salary, status, and responsibilities. Courts do not expect employees to take the first job offered, nor does it require the employee to look for work 24/7, but they do consistent action that is reasonable in the circumstances. This includes submitting applications, attending interviews, networking within their industry, and perhaps even exploring freelance work or additional training to stay competitive. Employees are recommended to document these efforts in detail. A straightforward log of applications, interviews, and professional conversations are often crucial evidence in potential disputes.
The Employer’s Challenge
Employers face the challenge of proving an employee failed to mitigate their loss. Courts place the heavy burden on the employer to show two things: 1) the employee did not take reasonable steps to find new employment, and a comparable position existed that the employee likely would have secured with enough effort. This proof is difficult to establish. Courts often favor the employee unless the employer presents clear, compelling evidence of an inadequate job search.
Statutory Pay Versus Common Law Severance
It is important to differentiate between statutory termination pay and common law severance. The duty to mitigate applies only to severance or wrongful dismissal damages, not to the minimum termination pay provincial laws require, such as Alberta’s Employment Standards Code or the B.C. Employment Standards Act. Employers must provide these statutory entitlements promptly, regardless of the employee’s job search efforts.
Recommendations for Employees and Employers
Employees should immediately begin a well-documented job search, focusing on roles matching their skills and experience. On the other hand, Employers must fulfill their statutory obligations without delay and seek legal guidance before claiming an employee failed to mitigate.
At TZ Law, we are experts in employment law and provide services in Calgary, Edmonton, Vancouver, and surrounding areas. We offer customized advice for employees pursuing fair severance or for employers managing terminations.
