Mitigation – the Duty of Every Wrongfully Dismissed Employee

Duty to Mitigate -- Person reading an employment contract

What a former employee chooses to do after being dismissed or constructively dismissed is a personal matter. However, if the employee chooses to file a claim for wrongful or constructive dismissal, the court will always examine the efforts made by the former employee to mitigate damages following the dismissal. Mitigation involves taking steps that any reasonable person in a similar situation would take to find comparable employment and to accept that employment if it becomes available.

Consequences of Failing to Mitigate

If an employee fails to fulfill the duty to mitigate, either by not reasonably searching for new employment or by refusing a comparable employment opportunity, this could negatively affect the amount of notice awarded from the claim. The court may reduce the amount of damages awarded or even decide not to award any damages as of the date on which the employee failed to satisfy this duty.

How Far Must Mitigation Efforts Go?

A dismissed employee has the duty to search for reasonably comparable employment and to accept that employment if it becomes available. However, if an employment opportunity arises which is substantially different from his or her former role, an employee is not under any obligation to accept it.

In some circumstances, such as constructive dismissal, employees may be expected to accept temporary employment with the employer who terminated them. This requirement only exists if the temporary re-employment offered is similar to the employee’s former role of employment and if a reasonable person in the employee’s situation would likely accept the employment. This type of arrangement would be comparable to the employee receiving working notice of his termination, thus providing the employee an opportunity to continue working while arranging for other employment.

Such re-employment with the dismissing employer may be viewed as a reasonable form of mitigation. However, where barriers exist, the employee would not be obliged to accept temporary re-employment with the dismissing employer. Such barriers might include a poisoned work environment due to harassment or a complete and utter break down in the employee/employer relationship.

For related case studies and more information on Mitigation and the duties of Wrongfully Dismissed Employees, search our blog.

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