Wrongful Dismissal Claims: The Duty to Mitigate

When suing your employer for wrongful dismissal, you must make “reasonable efforts” to obtain re-employment to a comparable role. Failing to do so can have serious consequences for your wrongful dismissal claim.

This article covers the basic facts about the duty to mitigate that every employee should be aware of going into a wrongful dismissal claim.

When do I need to start looking for other work?

The answers to this question depends on a number of factors, but generally, an employment law firm will recommend that you start looking for work no later than your notice and severance period under applicable employment standards legislation. For instance, if you are entitled to 8 weeks of notice and 10 weeks of severance under the Ontario Employment Standards Act, you should have started looking for work within 18 weeks of your termination date.

What should I be doing?

There are other ways to look for work than sending out job applications. Other activities that could be considered part of your job search might include:

• Updating your resume
• Looking through job posting boards (such as indeed.com or Linkedin)
• Networking activities, like getting coffee with industry colleagues
• Speaking to a career counsellor

What efforts are considered “reasonable”?

That depends on the circumstances. For instance, if you have a disability, you have no duty to apply for jobs which you medically cannot perform. Generally, your efforts do not need to be perfect, only “reasonable.” As a rule of thumb, disability lawyers and employment lawyers recommend sending out an average of one job application per week – but that won’t be practical in some cases, and it won’t be enough in others.

What roles are “comparable”?

Roles with similar pay, duties, responsibilities, and in the same general location are considered comparable. You do not have to accept work that is much different or lower-paying than the job you were dismissed from. By the same token, you should not restrict your job search to better jobs, jobs in different industries, or jobs requiring different skill sets.

How do I prove that I am making “reasonable efforts”?

It is your responsibility to document your own job search activities. Most employment lawyers recommend keeping a journal of your activities. If you apply to jobs online, you will typically receive an e-mail confirming your application – we recommend you keep that as well.

What happens if I cannot demonstrate reasonable efforts to mitigate?

If you fail to demonstrate reasonable efforts to mitigate, you will negatively impact your wrongful dismissal case, typically by somewhere in the range of 10%-50% of your entitlement. All advice that we provide to you is contingent on the assumption that you will make reasonable efforts to mitigate.

What happens if I find another job?

If you earn money from a replacement job during your claimed notice period, those earnings (known as your “mitigation earnings”) will be deducted from your damages for wrongful dismissal. For instance, if you are entitled to 12 months’ reasonable notice, and you start a replacement job earning the same pay 8 months after your termination, your entitlement will be limited to 8 months’ pay in lieu of notice.

Note, however, that your mitigation earnings cannot reduce your entitlement to notice and/or severance pay under employment standards legislation.

How does mitigation impact a settlement?

Your duty to mitigate and the consequences of re-employment can be a good reason to settle your claim early, thereby removing the uncertainty and risk. Mitigation is a kind of “X-factor” in wrongful dismissal cases that can quickly (and substantially) change the value of a claim.

If you have been terminated, laid-off or severed from your job contact the employment lawyers at Share Lawyers. Our experienced team of Employment Law lawyers can help. We offer free consultations and there are no fees unless we win your case. Find out if you have an Employment Case!

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A note from our long term disability lawyers

Taking a medical leave from work is not an easy decision to make. Concerns about providing for yourself and your family and keeping your job may cause you to want to push through your pain, but this won’t make your problems go away. Stopping work is often the smartest decision for your long term health and well-being, and your disability benefits are there to provide you with financial support until you can return to work.

If you have made the tough decision to stop working and apply for your short term disability or long term disability benefits, you may feel overwhelmed by the process and have questions that your employer and your insurance company are not able or willing to answer. Share is There to see you through and answer your questions.

Our Disability law firm knows what you have been going through

We understand that things have not been easy for you over the last little while. Your health has been suffering, you are unable to work, and now your insurance company, who was supposed to be there in your time of need, has decided they will not pay your disability benefits or respect your disability claim. These benefits exist to provide you with the financial support you need so that you can focus on your health and rebuilding your life. It is unfortunate that your insurance company has not lived up to its promise. If your disability claim has been denied, we will fight to get you the benefits you are entitled to. Our disability lawyers have helped thousands of Canadians get their long term disability benefits over the past 35 years, and we can help you too.

Our experienced disability lawyers can fight back on your behalf

Share Lawyers believes that every client who is dealing with a disability claim deserves superior personal service. To achieve that goal, we have developed our team of experienced, compassionate, and caring long term disability lawyers, law clerks, and administrative staff to meet all of your needs. Our team of experienced long term disability, life insurance, employment, and critical illness insurance lawyers have made successful claims against many insurance companies, third-party administrators and employers.

If you are unable to work, your disability benefits should be there to provide you with the financial support you need. While your insurance company may be focused on finding ways to avoid paying your claim, our focus is on what is in your best interest. When Share Lawyers gets involved, you have an entire team of lawyers that are there to support you and to fight for what is yours.

Our disability claim lawyers fight for your disability insurance claim by relying on our many years of experience to apply the best strategic planning and approach in each case, using the latest technology available. Experience matters, and with Share Lawyers, you are in the best hands with 35 years of success on your side.

In this video, we explain the role of a long term disability lawyer and how we can support you when you have been denied your long term disability benefits.