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Labour & Employment Law Blog

Severance Action in British Columbia Fails on Duty to Mitigate

Zeilikman Law

Zeilikman Law

Case Summary

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

The above article is for general information purposes only, does not constitute legal advice or create a solicitor-client relationship. Because each case is unique and factually driven, if you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere. We represent clients in the Greater Toronto Area including Toronto, North York, Markham, Vaughan, Thornhill, Newmarket, Aurora, Brampton, Mississauga, Barrie, Ajax, Whitby, Pickering and Oshawa.

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Legal Receptionist

Zeilikman Law is an employment law firm located in Vaughan, Ontario. We are looking to hire a legal receptionist to join our firm. Preference will be given to candidates who have experience working as a receptionist at another law firm.

Location: Vaughan, Ontario.

Start Date: Immediately.

Hours: Monday to Friday, 9 am to 5 pm. Full time. In-person only. This is not a remote work position.

Wages: 35,000 to 40,000 per year.

Duties and Responsibilities:

  • Manage our firm’s multi-line telephone system to receive incoming calls.  Screen incoming telephone call inquiries to determine the nature of the telephone call and provide standard information related to our legal services.  Take and deliver messages and route incoming telephone calls to the appropriate staff person.
  • Answer general inquiries coming from the firm’s social media and website email.
  • Welcome in-person visitors upon arrival.  Direct visitors to the appropriate staff person and / or office or boardroom.
  • Organize in-person visitor schedule to prevent overlap and multiple bookings.
  • Receive, sort, and distribute daily mail and deliveries.
  • Arrange for couriers.
  • Keep front reception, kitchenette area and boardroom tidy.
  • Perform various clerical duties such as filing, photocopying, and faxing on an as-needed basis.
  • Process client or other payments.
  • May be asked to run minor errands outside of office such as attending post office to arrange a courier or pick up mail.
  • May be asked to assist other law clerks or lawyers of the firm as required and as appropriate.
  • Any other basic administrative duties or tasks as deemed appropriate.

Required Skills:

  • Basic knowledge of general office procedures including filing, faxing, and printing and copying.
  • Basic word processing computer skills.
  • Proficient in receptionist and telephone practices, etiquette, and decorum.
  • Professional attitude and appearance.
  • Excellent organizational skills.
  • Positive customer service attitude is a must.
  • Must be able to maintain confidential and sensitive information.

Education and Experience:

  • Highschool diploma or equivalent.
  • 1 – 2 years’ experience in an office setting with an emphasis in accounting, reception or clerical work is required.   We would prefer experience in a law firm environment.

Applications for this position should be sent via email to jennifer@zeilikmanlaw.com. All applications should include a cover letter, resume and at least two references. Only successful candidates will be contacted.