THE FACTS

The British Columbia Supreme Court recently ruled against the plaintiffs in an action for pay in lieu of reasonable notice due to the plaintiffs’ failure to establish that they met their duty to mitigate.

The plaintiffs worked at Hamburger Mary’s as a cook and waitress for approximately eighteen years. Hamburger Mary’s was purchased by the defendant, Cabaret, and temporarily closed down for renovations. On March 12, 2015, the plaintiffs were told that they would be laid-off while the restaurant was closed for renovations, but would be reinstated to their previous positions once the restaurant reopened, which was expected to be in June 16, 2015. By September of 2015, it became apparent to the plaintiffs that they would not be returning to work. The plaintiffs sued for fourteen months pay in lieu of reasonable notice but the court awarded them just shy of five months. The court found that the plaintiffs had not been actively looking for work and therefore had not met their duty to mitigate their losses arising from the loss of employment.

OUR THOUGHTS

This case emphasizes the importance of the duty to mitigate in employment law. In cross-examinations, both plaintiffs admitted to not having applied to a single job in the fourteen months they were out of work. Taking into account the availability of similar job positions in the surrounding area, the judge found that the plaintiffs would have likely found work had they been actively looking, and were therefore not entitled to the entire fourteen month notice period.

The duty to mitigate is a longstanding and important element of any action for a wrongful dismissal. It is interesting to keep in mind that although the burden is not a heavy one, former employees must actively seek work following termination. Failure to do so may limit the extent of pay a former employee would otherwise be entitled to in lieu of reasonable notice. What constitutes actively looking for employment is not exactly clear, however. In the past, courts have adopted a relatively relaxed approach in determining whether a person has met their duty to mitigate. Usually, applying to a few positions a week will suffice to satisfy a court that one has been actively looking for work. The burden is a relatively light one but the potential consequences of failing to meet it can be high. In certain circumstances, courts have even been willing to grant employees time before they are expected to begin looking for alternate employment, so as to allow them a period of recovery from the shock of losing their job. As such, it is always important to make a reasonable effort to secure alternate employment shortly after you have been terminated.

See Logan v Numbers Cabaret Ltd. 2016 BCSC 1473